State of New South Wales v Canellis & Ors; State of New South Wales v A.B.

•

IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Sydney No S45 of 1994

B e t w e e e n -

THE STATE OF NEW SOUTH WALES

Appellant

and
GEORGE CANELLIS

First Respondent

HON JOHN PATRICK SLATTERY AO QC

Second Respondent

ANDREW PETER KALAJZICH

Third Respondent

Office of the Registry

Sydney No S46 of 1994
B e t w e e n -

THE STATE OF NEW SOUTH WALES

Appellant

and

Canellis(2)	1	4/5/94
MASON CJ BRENNAN J DAWSON J
TOOHEY J
MCHUGH J

AB (Formerly WARREN ELKINS)

First Respondent

HON JOHN PATRICK SLATTERY AO QC

Second Respondent

ANDREW PETER KALAJZICH

Third Respondent

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 4 MAY 1994, AT 10.17 AM

MR K. MASON, OC, Solicitor-General for New South Wales: If

the Court pleases, in each of these matters I
appear with my learned friend, MR o. COWAN, for the
appellant. (instructed by H.K. Roberts, Crown
Solicitor for New South Wales)

MR D.F. JACKSON. QC: If the Court pleases, I appear with

my learned friend, MR C. STEIRN, SC and
MR s.w. WILKINSON, for the first respondent in tpe
first appeal called. (instructed by Cara & Company) Your Honours, may I just say one thing, having
said that, and that is that I understand that there
are applications for leave to intervene on the part
of the Attorneys-General, and we wish to be heard
in opposition to that.

MR M.L.O. EINFELD, QC:

May it please the Court, I appear

with my learned friend, MR D.R. CAMPBELL, for the

and described elsewhere as Mr Elkins, and if it is first respondent in the second appeal, known as AB
convenient to Your Honours, that is how we may
describe him for the purpose of the appeal.
(instructed by Verekers)

MR J.S. GORDON:

May it please the Court, I

appear on behalf

of the third respondent in each of the appeals with
my learned friend, MR J.I. DORIS. (instructed by
McGlynn & Partners).
It may be appropriate, of course, to advise

the Court at this time that no submissions have
been filed by the third respondent, and we adopt,
endorse and support the appellant's submissions to

the Court.

Canellis(2)	2	4/5/94
MR w.c.R. BALE, oc, Solicitor-General for the State of	Tasmania:	May it please the Court, I seek leave to

appear on behalf of the Attorney-General for
Tasmania to intervene in the interests of the

appellant. (instructed by the Crown Solicitor for
Tasmania)

MR J.J. DOYLE, OC, Solicitor-General for the State of South

Australia: If the Court pleases, I appear with
MR N.A. MANETTA, for the Attorney-General for the
State of South Australia, and with MR K.M. PETTIT,
for the Attorney-General for the State of Western
Australia, and we also seek leave to intervene in
both matters in support of the appellant.
(instructed by the Crown Solicitor for South
Australia)
Does the Court wish to hear argument after

Mr Jackson on this? That is in support of the
application.

MASON CJ: As you are replying, I suppose you ought to

indicate very shortly the grounds on which you and
the other Solicitors-General are applying for leave
to intervene.

MR DOYLE:

If Your Honour pleases, putting it very shortly

then. First of all, the cost implications which
would flow for the States from the decision in the
court below, because one assumes it would not
necessarily be confined to identical fact
situations. Secondly, the decision of the court
below would affect the application and
interpretation of the number of statutes in the
various States dealing with inquiries. In
particular, one might think, statutes relating to
royal commissions. Thirdly, the impact of the
decision on the functioning of the executive in the
sense of the impact of it on the ability of the
executive to establish inquiries either generally
or alternatively exercising compulsive powers, or

whose reports would be made public and, finally,
perhaps the fact that in Dietrich's case the Court,
where a similar issue was at stake, allowed
intervention and, indeed, I think Your Honour
the Chief Justice appeared to comment perhaps
slightly adversely on the fact that some States had
not responded to that invitation, and so no doubt

taking that to heart, they are here today. It was
not an invitation, or course, as leave had to be
obtained, but - - -

MASON CJ: The remark was not designed to support your

application for leave to intervene today.

MR DOYLE: Well, Your Honour,·we pray anything in aid that

seems available, and we thought - - -

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MASON CJ: Yes, I notice it is the last of the grounds

you - - -

MR DOYLE:

Yes, Your Honour, but we take everything

Your Honour says very much to heart and, having
read the judgment, the States appeared.

MASON CJ: The remarks are directed not at the heart, but

the head, Mr Solicitor.

McHUGH J:

Mr Solicitor, the case in the Court of Appeal was

said to turn on very narrow facts and the
respondents contend that the case has no precedent
value outside the special facts of this case. What
do you say about that?

MR DOYLE: That is the sort of argument which I think I

noticed in Mr Jackson's outline, the sort of
argument I would expect him to deploy, but in our
respectful submission, experience does tell that to
suggest that that sort of principle can be confined
to a single set of facts that will never repeat
itself is, in our submission, optimistic.
Secondly, when one reads the judgments, while

one could perhaps say that as to one of the
persons, AB, there is a very special factor,
namely, the difficulty of him actually coming to
the hea~ing because it might disclose his new
identity, apart from that, in our respectful
submission, the underlying principle really must be
that in certain situations where legal
representation is required for you to effectively
exercise a right to be heard, you must have it. In
our submission, whatever the court has said below,
there is a general proposition underlying its
reasoning which cannot be denied.

McHUGH J: Would you dispute that in some circumstances the

State might have to fund a person in any inquiries?

MR DOYLE: Yes, Your Honour, if you deliberately mean

inquiry. In our respectful submission, the law is,
and should remain, that that is only the case in
trials and that in no situation would it be the
case in a trial. I am prepared, with respect, to put a question mark over, as I said, the position of AB where it may be possible to say he cannot

even appear in person for very special reasons. If
the Court pleases.

MR P.A. KEANE, QC, Solicitor-General for the State of	Queensland: If it please the Court, I appear with
my learned friend, MR R.W. CAMPBELL, for the
Attorney-General for-the State of Queensland.
(instructed by the Crown Solicitor for Queensland)

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We also seek leave to intervene in both

matters in the interests of the appellant and we
adopt what our learned friend for the State of
South Australia has said in relation to that application.

MR D. GRAHAM, OC. Solicitor-General for the State of

Victoria: May it please the Court, I appear with
my learned friend, MR A.L. CAVANOUGH. (instructed
by the Crown Solicitor for Victoria
We seek leave to appear in both matters on

behalf of the Attorney-General for the State of
Victoria in support of the appellants and we adopt
the reasons advanced by my learned friend,
Mr Doyle, for the reasons of the grant of leave.

MR G. GRIFFITH, OC. Solicotor-General for the Commonwealth:

If the Court please, I appear with my learned
friend, MR C.R. STAKER, in the common interest on
behalf of the Attorney-General for the Commonwealth
seeking leave to intervene. (instructed by the
Australian Government Solicitor)
Your Honour, we seek to limit our submission

to the matters we see of general principle but covered by the matters that my learned friend,
Mr Doyle, referred to and we further say that our
submissions on these issues will be very short but
we do see them as being in the public interest.

MASON CJ:	Mr Jackson.
MR JACKSON:	Your Honours, as I have indicated, we oppose

the grant of leave ~o intervene of any of the
applicants therefor and by that I mean that that is
so whether the intervention be effected by oral
argument or by what is sometimes the more effective
way of handing up written submissions for the
assistance of the Court.

Your Honours, having said that, our submission

is, if I could put it broadly first and then seek
to develop it by reference to three aspects, that in an appeal - and this is an appeal - brought to
the Court pursuant to section 73, leave to
intervene should only be given in cases which
exhibit special features of which the present case
has none.
In relation to that, may I develop that by

reference to three matters: the first is the
theory underlying intervention so far as it can be
discerned; the second is the nature of the
proceedings, and I will refer back to their nature
as an appeal in just a moment; the third thing is
the undesirable consequences of permitting

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intervention in cases such as this in the long term. May I move to the first of those things.
Your Honours, turning first to the area where

intervention is more familiar in constitutional
cases, intervention is now, of course, as of right,
by reason of section 78A of the. Judiciary Act. But
that was not always the case and intervention was
allowed to the Commonwealth and the States by leave
which was not always granted, as Your Honours will
recall.
The cases in which leave to intervene was

granted prior to the statutory right being
available were cases which almost inevitably arose
in the Court's original rather than appellate
jurisdiction and that is so either because the
proceedings were either instituted in the Court or
they were proceedings which had been automatically
removed to the Court.
Your Honours, that is still largely true of

constitutional cases in terms of their being in the
original jurisdiction of the Court rather than the
appellate jurisdiction, although the trend of
course is changing a little. The fact that the
proceedings were in original jurisdiction meant
that the Court could more easily mould its own

procedures. The litigation was not inter partes in
the stricter sense, as is the case with appeals.
May I come back to that in just a moment.
Your Honours, the important"thing· in

constitutional litigation, however, was really the
subject-matter. That was so for several reasons.
The first aspect was that the Constitution was
itself incapable of amendment otherwise than by the
means provided for by section 128, unlike the
position in non-constitutional cases where a State
or the Commonwealth can legislate away the effect

of a decision. The second feature which militates in favour of there being intervention in constitutional cases
is that the Commonwealth and the States in one
sense represent the polities on the one hand that
go to make up the Federation, and so one can
understand intervention, and also that they
represent the people of those polities in their
several capacities as citizens of the State and of
the Commonwealth, and one can understand that those
people should in a sense be heard.
That can be achieved in a number of ways, but

the development of intervention by the
Attorneys-General is· an obvious enough development
from a number of other earlier strands such as the

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roles of the Attorneys-General in the public
interest, as in parens patriae situations, relater
actions and as representatives of a polity in
starting or defending actions.
Your Honours, one can also see that in some

classes of case which are non-constitutional, there
may be a case for intervention by an

Attorney-General. May I give a couple of examples.
One case is where the polity might have been a
proper party in any event. The second is the class
of cases where a co-operative scheme, for example,
the Corporations Law schemes, is in question and
there are significant legal or practical
limitations upon the ability to amend. A further
class, Your Honours, is also cases where there is
no person really presenting an argument which is an
opposing view and where the Attorney-General acts
as a kind of amicus curiae.
A fourth class perhaps is the class of case

where the very nature of the matter, such as an
application for admission, as was referred to in
the Court's decision in Wentworth v New South Wales
Bar Association, is one where the class of parties who may bring matters to the attention of the Court
is not limited.

McHUGH J: But Mr Jackson, these arguments might have been

very persuasive 30 years ago, when the declaratory
theory of judging prevailed and when litigation was
simply between private parties. But this Court.now
has a creative law-making-role; and what it does in
its judgments has effects far beyond the immediate
parties to the appeal. In this particular case it
is alleged that the judgment of this Court may have
enormous financial ramifications for each of the
States and the Commonwealth. In those
circumstances, why should the Court not have as
much assistance as it can?

MR JACKSON: Well, Your Honour, there is a number of reasons

in relation to that. The first is that the Court's
law-making function exists of course. It exists in the types of proceedings which, by the Constitution,

or pursuant to it, are given to the Court. They
come about, broadly speaking, in two ways: one, the
original jurisdiction of course; the other being in

relation to appeals. Now, Your Honours, so far as
appeals are concerned, they come before the Court because they are appeals in proceedings which are
proceedings inter partes in the courts from which
they come.
Some of the things that Your Honour was

putting to me a moment ago really almost suggests,
if I may say so with respect, that there could be

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taken into account matters which are in a sense

fresh evidence. Now, I know Your Honour was not
meaning that but, Your Honour, one tends to see a
situation that could arise like this which, in our
submission, would really be in a sense
impermissible.
Let it be assumed that in fact this case has

significant wider implications than the facts of
the particular case, and let it be assumed that it

would have a significant financial effect. Now,
Your Honour, why one would decide the case on the
basis of the financial effect for any State other
than New South Wales is not, with respect, very
obvious because - - -

McHUGH J: Because the case involves a principle, as the

Solicitor for South Australia would contend, of general application.

MR JACKSON:

Well, Your Honour, one can say that about every

decision that the Court makes, in a sense.

McHUGH J: Exactly, and it may be that rather than going

back to the old days of intervention which were
favoured when I first came to the bar, that perhaps
the Court should open up and take a wider range of
submissions, even from amicus curiae in some cases.

MR JACKSON: Well, Your Honour, I am not suggesting, with

respect, that the Court does not have a discretion,
in some cases, to permit that. What I am seeking
to say is that it should not be the rule, but the

unusual thing for that to happen. Your Honours it
is true that a decision on a statute in a fairly
common form; it is true the decision on the common
law may have the effect of binding precedent
throughout Australia. There is no question about
it, of course, and it has effect in jurisdictions
other than that from which the question comes.
But, Your Honours, it may be that the decision

affects governmental power; it may be it affects
finance and it may be it affects the past or future
freedom of action of particular people or of a
State.
But, Your Honours, that is true of decisions

of all kinds and one takes, for example, the courts
overruling Rylands v Fletcher. There is no one

here to speak on behalf of potential Rylands v
Fletcher plaintiffs. And that brings me really, in
a sense, to the third point - perhaps I can say one
further thing about the second point, and that is
this - that these are, of course, appeals. They
come to the Court by reason of section 73. The
Court is passing on-the correctness of what
happened below and, in doing that, Your Honours, it

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is dealing with the situation in relation to
litigation in courts which have developed rules as
to the persons who are proper parties to be heard
before those courts and, in dealing with that,
Your Honour - in dealing with appeals of that kind
it really is a different situation from saying what
the rule should be in this Court for the first
time, because it seems a very strange thing in one
way, at least, if a person who could not be a party
in proceedings in the court appealed from is then
able to come along and say what, to the extent
permitted by the Court, they are allowed to do.

MCHUGH J:	It does not seem to me to be strange when you see what this Court's role is which is far more than an
institutional role.
MR JACKSON:	Your Honour, one really should not start, with

respect, a priori, from saying what the effect of
the Court's decision is and thus derive the role
from that.

McHUGH J: The more assistance the better.

MASON CJ:

It depends on the quality of the proceedings.

MR JACKSON: Well, Your Honour, can I say that then perhaps

does bring me to the third thing and it is this: I
do not suggest for a moment, Your Honours, that the
floodgates argument is one to which I would place
any great reliance but it is more a case really of
poisoning the well.
What one sees, Your Honours, is this, that the

interest represented is a practical matter by
interventions of the kind in question will always

be governments. Your Honours, they represent a
number of things. One is, they represent a kind of
show of support for the government party to the
litigation and its position. It leads, for
example, to the impression the court below perhaps

got it wrong. Otherwise the States would not be so

concerned. Your Honours, it is a kind of subtle
influence.
Your Honours, unanimity of view does have an

effect. Cole v Whitfield is an example of that,

with respect. Your Honours, further, the weight of
the arguments tends to become skewed. One sees
that more and more skilled advocates who are
experienced in the jurisdiction push one side's
case. And, Your Honours, sometimes the consequence
will be that pro-government arguments which really
should not succeed do and that is, Your Honours,
after all, why they are here.

MASON CJ: Yes, thank you, Mr Jackson.

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MR EINFELD:

Your Honours, we would seek to be heard, if we

may, in response to the same application just
briefly. The first respondent in the second appeal
adopts the submissions of my learned friend,
Mr Jackson, and can I add three matters. A submission was made shortly ago -

MASON CJ: There is a limit to what can be said on this

topic, is there not, Mr Einfeld?

MR EINFELD:

Yes, Your Honour, and I just make three - - -

MASON CJ:

We are dealing with a procedural point at the threshold of what is a substantial point.

You seem

to run the risk that argument is going to centre
round this procedural question.

MR EINFELD: One hopes not, Your Honour, certainly. There

are three matters that were raised by the
applicants to which I briefly seek to respond if I

may. It was submitted that in support of the
application for intervention, intervention was, in
fact, allowed in Dietrich, and accordingly it ought

to be allowed here. May we simply say in response
to that that the appellant in Dietrich was
contending for a general proposition, namely, a
common law right to counsel as a fundamental common
law right, raising therefore a matter of general
application.

MASON CJ: But was intervention allowed in Dietrich?

MR EINFELD :: . Yes' Your Honour.

MASON CJ:

I remember that notice was given to the States

and the Commonwealth of the hearing giving them an
opportunity of applying or perhaps presenting
submissions, and that is the comment that I made in

the judgment of Justice McHugh and myself. I do
not actually recall that there was an application

for leave to intervene and a grant.

MR EINFELD:

I think the Commonwealth intervened and the

States did not.

MR DOYLE: South Australia did. South Australia and the

Commonwealth were here.

MASON CJ: They did not prevail. Yes, I recall your

submissions, Mr Solicitor. I am not so sure that I
recalled them quite as vividly when we wrote the
judgment.

MR DOYLE:

They obviously made a very deep impression,

Your Honour.

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MR EINFELO:

The second short submission we wish to make is

in response to the contention that this appeal will
have ramification of wider ambit than the context
of the inquiry currently being conducted in New
South Wales; in particular, it was suggested for

royal commissions. May we respond to that briefly
by saying that to the extent there is a question of
statutory construction arising in this case at all,
it arises in respect of a very narrow statutory
provision recently introduced and since, indeed,
overtaken by subsequent amendment, so that the
ramifications for other statutes not only in New
South Wales but interstate, are minimal indeed if
existent at all.
The third submission we wish to make is in

respect of the contention that this appeal has cost
implications for other States. Whilst that

superficially may be attractive, may we point out
that in the case, for example, of Victoria we have
received this morning a substantial submission
which has annexed to it a vast array of detailed
financial data addressed, one assumes, to the
circumstances of provision of funds for legal aid

schemes and the like in Victoria. We adopt my
learned friend, Mr Jackson's, submission that to
some extent, and in this case a specific extent,
that in essence constitutes, to the extent it is
able to be permitted to be relied upon, fresh
evidence in the case.
More significantly, we will submit during the

course of the appeal proper that, in fact, in this
case, there was no evidence at all below as to the
implications upon the public purse of New South
Wales, so that it is part of our submissions, but
we say in opposition to the grant of leave to
intervene, that to the extent the States and the
Commonwealth seek to intervene in support of a
proposition that this case has ramifications for

their own public purses or legal aid schemes or
other legal funding legislation, that does indeed
skew the view the Court ought have of the facts of
this case in which, as we say, New South Wales
below nor any of the other parties, filed no
evidence at all as to the state of finances which
may or may not be affected, or to the state of
funding available, or any matters of that kind. In circumstances of that nature, therefore, it
is our respectful submission that submissions of
those seeking intervention as to cost implications
beyond New South Wales and beyond the evidence in
the case itself, does {a) pose a difficulty for the
respondents, for one· of whom I appear, in the sense
that evidence that is provided is new; to the
extent there is no evidence, then we would submit

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the Court ought not have regard to, apart from the
obvious, the submission that is made by the
Solicitor-General for New South Wales anyway, and
that is the common sense consequence that any order
of the kind which would follow from the declaration
made by the Court of Appeal would have general
ramification for the public purse, as does
virtually every decision of this Court and other
courts to some extent or other. For those reasons,
Your Honour, we lend our support to Mr Jackson's
opposition to the grant of intervention. May it
please the Court.

MASON CJ: Thank you, Mr Einfeld. The Court is of opinion

that the circumstances of the case justify the
grant of leave to intervene. There, therefore,
will be the grant of leave to intervene to those
who have sought it. Yes, Mr Solicitor for
New South Wales?

MR MASON:

Your Honours, I should have mentioned at the

outset that the Honourable John Patrick Slattery is
a submitting party in each of these matters.

MASON CJ: Yes, and we have been informed that he submits to

any order the Court may make, except as to costs.

MR MASON:

In view of what has just happened, I suppose I

should .say that I ask the Court to accept the
submissions that follow for their inherent weight
rather than the fact they come from a government
lawyer.
Your Honours will have the outline of our argument, and the first matter upon which I would
take the Court is the statutory framework. Section 475 of the Crimes Act is set out at page 218 of the
appeal book, and then I will take Your Honours to
the sections of the Crimes Act 1900 which modify
and change the situation to some limited degree.

At the time the petition was made in the present matter, section 475(1) was in force. It
provides that:
Whenever, after the conviction in any Court of
any person, any doubt or question arises as to
his guilt ... or any portion of the evidence
therein, the Governor on the petition of the
person convicted ... may direct any prescribed
person to, and such prescribed person may,
summon and examine on oath all persons likely
to give material information on the matter
suggested.
Your Honours, section 475 was repealed. If I

could take Your Honours then to the Crimes Act,

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Part 13A, which commences at 474A of the Crimes Act
1900. The effect of the repeal and the
transitional arrangements are set out in the
Eleventh Schedule to the Crimes Act, in particular
clause 10 of the Eleventh Schedule which is at
page 258 of the print. Clause 10(1) provides that:
Any matter that was pending, immediately
before the appointed day, under
section 475 ..... is to be finally disposed of
in accordance with that section as if that
section were still in force.

It then makes two qualifications to that provision.
Clause 10(3) on page 259 of the print was the
subclause that was added by the separate piece of
legislation, the Statute Law (Miscellaneous
Provisions) Act, which, despite what two of
Their Honours said in the Court of Appeal, was
drawn to the attention of the trial judge.
Subclause (3) provides that:
Despite subclause (1), subsections (2), (3)
and (4) of section 474G ..... extend to -

what I will call a 475 inquiry -
and to any witness summoned by or before the
prescribed person.

So one then turns to section 474G on page 196 of
the print. Subsections (2) to (4) provide in
sub (2) that the prescribed.person has:.
(a) the powers, authorities, protections and
immunities conferred on a commissioner by
Division 1 of Part 2 of the Royal Commissions
Act 1923; and
(b) in the case of a person who is a Judge of
the Supreme Court or whose

instrument ..... expressly so provides -

and Mr Slattery was of the latter character at the
relevant time -
the powers and authorities conferred on a
commissioner by Division 2 of Part 2 of the
Royal Commissions Act 1923 (except for section 17).
I

Section 17 of the Royal Commissions Act abrogated
the privilege against self-incrimination, so that
privilege is not abrogated in the current inquiry.
That exception of section 17 is repeated in subsection (3) of 474G. In subsection (4) it is
provided that:

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If it appears that the character of any person
(being a person who was a witness at the
proceedings from which the conviction arose)
may be affected by the inquiry, the prescribed
person must permit the person to be present at
the inquiry and to examine any witness who
attends the inquiry.

Each of the respondents, if I may use that
expression to refer to Mr Canellis and Mr Elkins,
fell within those categories and were permitted to
be present and to examine witnesses attending the
inquiry.
Your Honours, under section 475(4) of the

Crimes Act, now repealed and not in the current print, the Commissioner is obliged to report to the Governor, who was then required to dispose of the matter as appeared just.

TOOHEY J: Did the Commissioner not have comparable

protections and powers under the Crimes Act as it
stood before the introduction of Division 4?

MR MASON:

Some yes and some no, but Division 4 spells out,

in a little more detail, some matters that were
within the interstices of the earlier section 475.

TOOHEY J:

In any event, we are concerned with those earlier

provisions.

MR MASON:

You are not concerned with any of those

differences, no, Your Honour. It will be our
submission, and I will come to this later, that
section 474G(4) made no material change to its
predecessor which was section 475(3). The Court of
Appeal was of a contrary view and used that
contrary view as one of the grounds for revisiting
the exercise of the discretion by the trial judge
but, in our submission, wrongly found differences
that are not to be found in a comparison of the two

subsections. May I take it that Your Honours have, from a
reading of the judgment of Mr Justice Kirby, a
general understanding of the factual background;
the dramatis personae, as it were, that led to the
conviction of Mr Kalajzich and the role of the two

respondents in the present case. As we point out
on page 3 of the outline of submissions,
Mr Canellis was an indemnified witness at the

trial. He gave evidence that he was involved as a
paid hit man, in effect, but that he was not
directly involved in the murder of Mrs Kalajzich.
In any event, he was indemnified and gave evidence
for the Crown. Mr Elkins was convicted on a plea
of guilty for conspiracy to murder Mrs Kalajzich.

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He has been sentenced before the Kalajzich trial. He gave evidence and, of course, had no privilege
when he did give that evidence.
The allegations, and there are many, but the

allegations made by Mr Kalajzich in the outline of
his contentions before the inquiry include the
allegation that Canellis was guilty of the murder
of the deceased and that he conspired with the
police to pervert the course of justice and, as
against Elkins, that Elkins gave perjured evidence
at the trial.
Your Honours, in paragraph 8 of the outline,

the key declaration of the Court of Appeal is
recorded and this was a case in which such relief
was given but with liberty to restore the
proceedings for a stay should that become
necessary. In effect, what the court indicated it
wished to do was for the Commissioner to determine,
in the light of its decision, what level of legal
representation was called for and the court
assumed, but did not order, that the government
would provide the funding for that level of
representation and that the stay, if I may call it
that, would not come into effect. There was no
direct order against the government to pay but the
gun was at the head that if the money was not
provided the Commissioner had to stop the inquiry.
That was a binding legal obligation on the
Commissioner although not on the government.

BRENNAN.J:

How does that come about, Mr Solicitor?· Is it

the consequence of the first declaration made by
the court?

MR MASON: That was the court's expressed intention, that it

would come about that way but it is achieved in a very direct way. The government was not party to
the inquiry. At one point in the judgment - and I
will come to this later, if I may - it was said, in

effect, that the Commissioner has the choice
whether to afford natural justice or to stop the
inquiry and the content of natural justice being
declared to include this aspect of funding for the
witnesses, if the money could not be provided, no
one was suggesting it came out of the
Commissioner's pocket, then the Commissioner was
obliged by this declaration and by the foreshadowed
stay to stop the inquiry in its tracks.

BRENNAN J: That was not translated into an order of the

court, though?

MR MASON:

No, the liberty to apply was reserved for a stay

but the effect of the declaration which, of course,
would bind the Commissioner was, when read with the

Canellis(2)

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judgment, that he had to stop the inquiry when he
reached a stage that the inquiry would affect the
interests of the appellants and that left some
margin for judgment. In fact, what has happened -
and there is an affidavit in relation to this which
I will seek to read in support of a notice of
motion that is returnable today - the Commissioner
has been able to continue to some degree but, in
effect, has just about reached the stage where
nothing more can happen unless the respondents are
funded.
Your Honours, as we seek to have noted in

paragraph 9 and 10, there are matters that are
really common ground. This appeal as we understand
it concerns the content of the principles of
natural justice rather than whether they apply at
all and it is common ground, as we understand it,
that the content includes what I will loosely call
the Mahon principle whereby when and if - and I
stress "and if" - the Commissioner reaches a stage
where he is likely or he feels he may be likely to
report adversely to the interests of the
respondents, then they will have to be apprised of
that intention, if they were not already aware of
that of course, and given an opportunity to
confront the prospective statements made adversely
to their interests.
That time, if one sees that obligation in

terms of something that springs up when the
Commissioner reaches a level of persuasion by the
evidence that is adduced, that time as not come.
But when it does in one sense it will raise the
same issue that is involved in this appeal, "Does
the content of the right that then arises go beyond
giving an opportunity to respond to that
prospective view? Does it extend to an obligation
to fund or to see that the parties are funded in
some way?"

It is also apparently common ground that

section 474G(4) does not itself carry the
respondents' asserted right. This is a matter of
some significance in the way we seek to attack the
reasoning of the Court of Appeal. That provision
at page 197 of the print gave, in the events that
happened, a statutory right to be present and to

examine witnesses. Mr Justice Kirby at pages 230
to 232 of the appeal book considered an argument
that was put before the Court of Appeal as to
whether that provision carried, by necessary
inference, a statement the right to be effective
required the provision of legal assistance on the
facts of the present case.

Canellis(2)

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His Honour, at page 231 at line 15 and below,

set out his reasons for finding that right was not

implicit in the provision. He relied upon the
absence of express statement to that effect:
Secondly, such a duty would impose a burden on
the consolidated revenue, for which it might
be expected that specific legislative
authority would be expressed. Thirdly, other
legislation of the New South Wales Parliament,
including recent legislation, demonstrates
that where Parliament intends to provide for
legal assistance, it will expressly say so.

Some examples are given and His Honour added at the
bottom of the page that:
It is a serious thing for a court to add to
the words used by Parliament ..... And
particularly to do so in a way which imports
into them a burden on public funds, that must
ordinarily be raised by taxes levied on
citizens.
Just jumping ahead, very briefly, if one

turned, however, to page 239 of the appeal book,
line 15, one sees that His Honour, having said, "I
cannot infer that in the express provision of the
statute", notwithstanding that it addressed an
aspect of the audi alteram partem rule, His Honour
was able to infer it through the common law
process, from line 15 to line 20 and, we submit,
there-- is an unresolved discordance in that.
reasoning.
The primary submission that the appellant

makes in this appeal is as set out in paragraph 11
of the outline, that the powers of the
Commissioner, which are to inquire and to report,
are not conditioned on him or any other person

funding the first respondent's legal costs, and
that no basis exists for an order against the State
that directly or indirectly seeks to achieve the
same result. The proposition in that form takes
what I will call an absolutist position, although
we address an alternative submission about the
facts of a particular case.
We submit that the decision below - and I do

not think this is an issue - is a leap that does
not have any direct support in precedent. Indeed,
in our contention, it is contrary to what this

Court found in Dietrich. I will come to that very
shortly. But if one sees natural justice or
procedural fairness as having two traditional arms
we are clearly in the category of audi alteram
partem. Just to take two statements by Justices of

Canellis(2)

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this Court about what that involves, it is always

expressed in terms of an opportunity. Your Honour
Justice Mason, in Kioa v West, (1985) 159 CLR at
page 584 referred to Justice Kitto's statement in
Mobil, near the bottom of the page:
Where ..... Kitto J pointed out that the

obligation to give a fair opportunity to
parties in controversy to correct or
contradict statements prejudicial to their
view depends on "the particular statutory
framework" .

But "a fair opportunity".
Much more recently - and this is not in our

list - In re Media and Arts Alliance - and, of
course, there have been of those cases, but it is
the one reported in (1994) 68 ALJR 179, at
page 182, the judgment of the Court given by
Justices Deane, Dawson and Gaudron referred to:
the rule of procedural fairness which requires
that a person be given an opportunity to meet
the case against him or her.
A perhaps extreme example of this traditional

opportunity approach to natural justice, or this
arm of natural justice, may be seen in a case -
again, I am sorry, not on our list - called
Al-Mehdawi v the Secretary of State for the Home
Department, (1990) 1 AC 876, where a litigant -
this was a person exercising a right of review
against a deportation-type order - was given notice
but, through the fault of his solicitors, the

notice was not brought to his attention and argued
that he was denied natural justice in the events
that happened. The Court held that since the
default was in the sphere of his own advisors it
did not touch the validity, in terms of natural

justice, of what had happened by the tribunal.

McHUGH J:	Mr Solicitor, arguably this case involves a point of departure. Many of the cases to which you refer
in your written submissions are cases which depend
upon the oral tradition of the common law. But
this is a sophisticated case in which the State has set up, has given one party a large sum of money and other people who are being attacked are given
only minor sums of money.
MR MASON:	Yes.
McHUGH J:	Now, in that context, why should one not look at this case in a completely new light?

Canellis(2)

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MR MASON:

In one sense one should look at it, but why

should one come to the conclusion of the Court of
Appeal that they did.

McHUGH J: Because the argument - I mean legally you may be

right, but there seems an element of unfairness
about it, just looked at it from the point of view

of the person in the street or the judge on the bench if you like.

MR MASON:

Yes. Anticipating what I will come to later, just briefly responding, here one must not lose

sight of the fact that the function of this inquiry

is focused. The capacity of the law to bring about

miscarriages has been dramatically brought to

everyone's attention, both here and England in

recent years.

Now, whether or not this is such a

case is obviously to be determined. But this is a

procedure which New South Wales, in having
statutorily entrenched, is perhaps rather unique

but it is a long standing procedure for addressing

a real public issue.

The focus of the inquiry is whether the

conviction, or the evidence which led to the
conviction, creates - I have forgotten the wording,
but an uncertainty, or a concern. It does not

follow, no matter how Mr Kalajzich chooses to run

his approach, and there are some elements of
scattergun in what appears to be the attack, but

the ultimate issue will be whether a report should

be given that determines whether doubt exists

relating to his conviction, or the evidence which

led ·to it.

Cases like McKinney would be a reminder

that simply because one proposition is established

does not mean that, as against a converse party,

the converse proposition is established.

The complexity of the issue is certainly

becoming a commonplace of litigation of all types
in Australia today. At issue, and one of the

matters that is involved in this case, is how far the courts can go in framing, or adjusting, legal
rules to deal with that complexity. Maybe the
court has to go back to more traditional ways. But
to throw more money via a legal aid system is not
necessarily the response one makes to it.
The complexity of this particular inquiry has

been overstated, in that the talk about needing a
computer degree elides the fact that it is the
computer knowledge of the inquiry that projects

these pictures of documents on to screens. You do
not need a computer knowledge to read the screen.
And in any event non sequitur that a lawyer will
have that computer knowledge, and what this case is
about is paying for the lawyers, in effect.

Canellis(2)

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McHUGH J: What about the transcript? Is the transcript on

computer? Is one going to look at screens? Is
there a hard copy of the transcript?

MR MASON: There is, I understand, hard copy as well as a

computer screen. I was down there on one occasion
and, as you talk, almost seconds after you have
said something you can see your words in front of
you. It is very off-putting in fact.

McHUGH J: Perhaps we should introduce it up here.

MR MASON:

It is like a long distance phone call where you

are hearing your voice reverberating a couple of
seconds later.
Your Honour raised the question about the

State throwing money at one party and not at the
other. That raises a couple of questions. Nearly
all litigation, both civil and criminal, may well
involve disproportionate wealth on one side and the
other, and a question arises: is it the role of
the courts, (a) generally, or (b) in cases outside
of the Dietrich situation, to try to counterbalance
that inequality. There are lots of inequalities in
life that are not the proper function of the courts
to address.

MASON CJ: But it is different, is it not, when an

inequality is brought about by a decision of
government to provide an advantage to one party or
person without providing an equivalent advantage to
other people whose interests may be affected not to
the same extent, but may none the less be
significantly affected?

MR MASON:

I can only say not necessarily.

areas in which the executive makes the decisions,
including the hard decisions, and takes the

There are some

consequences. There are some where Parliament does

and there are some where the judiciary do. The
judiciary obviously may sit in judgment upon the
lawfulness of what the executive and Parliament
does but non sequitur that it may second-guess the
fairness unless fairness ceases to have any
content.

MASON CJ:

I was not intending to convey by my question to

you any view about the role of the courts: I was
merely seeking to take up the comment that you made
that there are inherent inequalities and that,
because there are inherent inequalities, the courts
can do nothing about inherent inequalities. But I
was saying that in this case it is not merely an
inherent inequality:_ it is an inequality that
arises by reason of an executive decision.

Canellis(2)

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MR MASON: Again, query. It does not follow that because

Mr Kalajzich was legally funded, that was the only
means he had for raising these issues. These
issues could well have been raised whether or not
he had a lawyer and whether or not that lawyer was
funded by the government. It does not follow that
it can be put at the State's door that this
situation has come about.

MASON CJ:

No, but I was thinking of times past,

Mr Solicitor, and of course the recollection is
generally imperfect of times past and it also
endows_ times past with an idealistic aura that
probably when examined proves to be incorrect. But
I was thinking of royal commissions in earlier
times where, as I recollect it - and I may be
mistaken - decisions were made on a basis of an
attempt to achieve fairness and equality in
providing funds for the costs of people who in a
sense were contending parties at a public inquiry,
the public inquiry being instituted in the public
interest. One has an impression in recent times,
again perhaps mistaken, that that degree of
equality has not been observed.

MR MASON:

Yes, there may be less all round and there are

some distinctions between a royal commission and
the present inquiry. A royal commission may be
just getting at the general truth; the present
inquiry has a statutory focus upon the rights of
the convicted person.

McHUGH J: But in the context of this case, when you say it

is an inquiry into whether there are any doubts
about the guilt of Kalazjich, they are also saying,
at the same time, it is an inquiry as to whether
there are any doubts about the innocence of
Canellis and Elkins.

MR MASON: Certainly, Kalazjich has chosen to raise those

issues as some of the issues he wants to raise and

on certain factual scenarios proving their guilt
may, he perceives, exonerate him; on others it will
not.

McHUGH J: It places counsel assisting the inquiry in a very

difficult position. He has got to try and hold an
even hand and it is not easy for him, is it, when
you have one party armed to the teeth and another
party with one hand behind his back, so to speak?

MR MASON:	We would cavil at the use of the expression "parties" but I know what Your Honour is putting.
Here, whilst it may create difficulties, that is
what counsel are paid to do and that is the
Commissioner's role.- This case is different from a
court situation where the admonitions about judges

Canellis(2)

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descending into the arena will cause itself an
injustice.

McHUGH J:

I know that is what they said in Testro Bros v

Tait, it was not; it was all different.

MR MASON:	No, I am not saying it is all different but there are differences and the capacity of the
Commissioner and of counsel assisting and of
counsel for the OPP and of counsel for the police, there are plenty of contradictors in the present inquiry.

BRENNAN J: Are you seeking to attack the judgment in the

court below by a method of establishing the
fairness of what has happened?

MR MASON:

No, I am not, I am seeking to respond to

questions from the Bench -

BRENNAN J: No, I did not think you were.

MR MASON:	- - - hopefully to demonstrate that these are within areas of fairness, not in the category of
legal fairness but fairness in terms of moral
judgments which constitutionally are, in this
present case, assigned to the executive and to
Parliament and not ~o a court on prerogative
review .. But my primary submission is, as I said
before, an absolutist position and I will come back
to the fall back, if I may, at a later stage.

Your Honours, Dietrich's case,

(1992) 172 CLR 292, has had a role at various times
in this litigation. At first instance it was
embraced by the present respondents as being, in
effect, the closest analogy to the right which they
were seeking to assert. Certainly in the Court of
Appeal there was a distancing from Dietrich in the
way that the matter was presented.

Our submission is that Dietrich is authority for a proposition which contradicts the decision of
the Court of Appeal. Dietrich, in my submission,
established at least two propositions: one, that
there is no common law right of an accused person
at trial, let alone a witness to be provided with
legal representation at public expense. The pages
for that proposition are set out at the top of
page 6.
The decision also established that in a

criminal trial the fundamental duty of fairness led

to an obligation in the judge to stay the proceedings if they were brought, in a serious

case, against an indigent accused. Now, in our
submission, the present case is clearly not within

Canellis(2)

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the second category and it is clearly covered by
the first category and if there is, as this Court
held, no common law right to be provided with legal
representation at public expense, that is exactly
the right which - through an application, or a
development of the principles of natural justice -
the Court of Appeal conjured and, in our
submission, as a matter of cold precedent, that
option was not open to the Court of Appeal, and
this Court should follow Dietrich's case.

BRENNAN J: But is that a fair description of what was done

by the Court Appeal?

MR MASON:

I beg your pardon?

BRENNAN J: Is that a fair descript of what the Court of

Appeal did? I understand this from passages in the
judgment but, looking at the order, it seems they
retreated somewhat from that.

MR MASON:

The order flowed from principles of natural

justice. It did not flow from the statute, and
they then turned to natural justice. As I
understand the reasoning, the principles of natural
justice exist at common law and were to be applied

unless statute necessarily excluded them. The
court said that in some circumstances, including
this case, the content of those principles included
a proposition that it was unfair to proceed without
legal representation.

BRENNAN J: Does one derive from. that, that what the Court

of Appeal was doing was extending Dietrich in the
second limb; in other words, saying that there will
be a breach of the obligations of natural justice
if you do not adjourn, or do whatever might be
appropriate, in the event of non-provision of legal
aid?

MR MASON:

Of course, it was this Court that established the

two propositions, and whether one is an exception
to the other does not matter very much but,
clearly, this present case does not fall within the
second limb as formulated by this Court.

BRENNAN J:

No.

My question was really directed to whether

you are setting up a straw man in relation to the
first proposition if the real proposition which we
have to deal with is whether the second proposition
in Dietrich is susceptible of extension.

MR MASON:

If the second proposition were extended

indefinitely it would consume the first
proposition. The two are in some tension, one with
the other, and in my· submission, on a prima facie
basis, I am firmly within category one, not

Canellis(2)

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..

category two. In my submission, this Court should
not extend proposition two and should apply
proposition one.
Your Honours, there have been two first

instance decisions since Dietrich that we are aware

of and I will hand them up if I may. One is a
decision of Helfenbaum, (1993) 65 A Crim R 264, a
decision of Justice Cox in Tasmania, declining to
apply Deitrich to a committal proceeding, and the
key page in Helfenbaum is at 267 near the bottom.
The other is an unreported decision of
Justice McDonald in the Supreme Court of Victoria,
National Safety Council of Australia v Fordham, and
the key passage is at page 6 of that judgment.
Your Honours, granted that the ultimate issue

is where one draws the line even if it is an
absolutist line, as I primarily contend, the
earlier decisions of this Court and other courts
take the position that in drawing the line one has
to engage in some form of balancing exercise that
the ultimate function is to protect against

unacceptable injustice. We all recognize, with
some exceptions, that everybody would be better off
in any legal proceedings if they were represented
by junior and senior counsel and several solicitors
but that deprivation, even if it is a deprivation
in comparison with one's opponent in the
litigation, is not itself an unacceptable
injustice, and certainly not one which it is the
function of the courts to set about remedying
generally· and a fortiori in cases involving·
administrative inquiries.
In paragraph 14 of the outline, we have given

Your Honours some references to statements in which
this notion of unacceptable injustice are involved.
They include primarily Jago's case and if I may add
to the passages that have been referred to page 72.

Jago, 168 CLR 23, and at page 33 Your Honour the Because there is no constitutional guarantee
of a speedy trial, the remedies are
discretionary and necessarily relate to the
harm suffered or likely to be suffered ..... The
test of fairness which must be applied
involved a balancing process, for the
interests of the accused cannot be considered
in isolation without regard to the community's
right to expect that persons charged with
criminal offences are brought to trial.
Chief Justice said near the middle of the page:
Justice Brennan at page 49, in particular the
passage commencing at about point 2:

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However understandable the granting of a
permanent stay for delay causing prejudice
might be, the remedy cannot be supported
unless it would truly be an abuse of process
to try the case. In determining what does
amount to an abuse of process, the
considerations which favour the expansion of
that notion so that it will support the remedy
of permanent stay for delay causing prejudice
to an accused must be set against
countervailing considerations which have
particular force in the criminal jurisdiction.

And at the very bottom of the page, the second-last sentence:
To admit a power to stay a case permanently
for delay causing prejudice seems wrongly to
undervalue the efficacy of the orders, rulings
and directions of a trial judge in removing
unfairness to an accused caused by delay or
other misconduct.

Justice Deane at page 56 at the top, the first
partial paragraph; Justice Toohey at page 72
commencing at about point 2 down to about point 4,
and Justice Gaudron at page 76, about point 6 to
point 7.
In our submission, some of the reasoning of

the learned President tended to deny or question
this balancing function although it may not be

entirely clear. At page 238 of the appeal book,
when His Honour was addressing the legal errors of
Justice O'Keefe in the exercise of his discretion,
at line 15, the President said:
When O'Keefe CJ Comm D turned to the
requirements of procedural fairness, he
appears to have considered that it was
necessary to balance the entitlements of the

appellants against those of Mr Kalajzich.
However, as I have shown, once the appellants
establish that they are suffering a relevant
derogation from their legal right ..... the
impugned conduct of the Commissioner is
invalid. It is outside his grant of power.

I do not think, with respect, that His Honour is
making a purely circular statement because the
expression "relevant derogation" is there but
His Honour does seem to be overlooking the fact
that the rights asserted by the respondents do not
exist in a legal or factual vacuum and that the
task of the court in deciding where to draw the
line, whether to extend or apply Dietrich, however
one categorizes the question, must be focused, in

Canellis(2)

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our respectful submission, upon what is
unacceptable injustice and, we would add,
unacceptable injustice in a legal sense, rather
than, as it were, a life experience sense.
In paragraph 15 we seek to develop the point

that there was this discordance between what the the statutorily based right and the reasons the
Court of Appeal had for erecting a common law based
right which, in part, turned upon the statutory
right to be present and to examine witnesses. At
page 235, at the bottom, in the judgment of the
President, line 24, His Honour said, when speaking
of the duty of courts to protect against
unfairness:
These consequences are achieved, not by
creating a new right at common law, but by
utilizing the long established powers of
supervisory courts, by judicial review, to
prevent the processes of the law themselves
becoming an instrument of oppression or
unfairness. Cf Dietrich.

Dietrich, of course, was a law case. It was a case where there was a trial in a court of law.
It is insufficient to say that the donees of power will not be required to conduct
proceedings which are unable to be conducted

fairly. The law requires that if that is the
only way in which the proceedings can be
conducted, the repository of the power must
seriously consider whether, in the particular
circumstances, the power should be used at
all -
In our respectful submission, that is a

fundamental error, that last sentence, because it
imputes or implies that Mr Slattery has some
element of choice about whether or not he will take

up the jurisdiction or authority that has been
conferred upon him by the Executive Council minute,
and that he may choose, as it were, to stop the
proceedings in its track, if that would trample

upon cornrnon law rights of the respondents. In our

submission, the common law rights, particularly
newly created common law rights, must accommodate
themselves to the statute, and not the other way
around.
At page 259 and page 260 in the judgment of

Mr Justice Sheller, His Honour posed the question,
near the bottom of the page, as being one:

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whether the inquiry before Mr Slattery can
proceed in a way which is fair according to

law if the appellants are unrepresented. The
answer is not concluded by saying that the
inquiry is not a criminal proceeding or that
the rules of procedural fairness in civil
cases have not to date mandated public funding
of legal representation for the indigent
litigant. What must be looked at is the
nature of the power to compel the appellants'
attendance.

That, with respect, is a very strange springboard
from which to erect the common law right that His
Honour found, and it seems to be a different one
from the one that Justice Kirby was looking at.
The mere fact that the present respondents were
compellable as witnesses really does not say very
much about whether the content of their natural
justice rights include State funded legal
representation.

DAWSON J: What is the nature of the process? It is

essentially inquisitorial, or it is partly
inquisitorial and partly adversarial?

MR MASON: Well, it is exclusively inquisitorial. It is a

statutorily based executive inquiry with power to
compel witnesses to attend - not power to abrogate
their privilege - and a duty to report.

DAWSON J:	What is the function of counsel assisting?
MR MASON:	Partly to manage the whole show, but to ensure

that it would include the calling of witnesses, not necessarily to cross-examine them, but also to fill in gaps, that if - - -

DAWSON J:	Do they protect witnesses?
MR MASON:	To Protect witnesses.
DAWSON J: Against unfair treatment?

MR MASON:

Yes.

The Commissioner himself, on two occasions,

at least, said that his role would be, if funding
was not available - and he expressed a view that it
would be good if funding were available. He did
not express that as a legal view, but as a wish -
but said if it is not, he will do his best to
ensure that their rights are protected.

TOOHEY J: But, is it entirely inquisitorial? Or, is not

there an element of adversarial proceedings in the
right to cross-examine?

Canellis(2)

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MR MASON:

Not adversarial in the sense that there is a

defined issue between two parties. Certainly there
are conflicting contenders for different factual
issues and different people are protecting
different interests, but the ultimate goal is
simply to get at the facts and to report.

TOOHEY J:	I am not clear, Mr Solicitor, from your answer to Justice Dawson whether counsel assisting calls all
witnesses or calls those witnesses who are not represented.
MR MASON:	My understanding is that he does not call all,

but people are free to call others. But I will
check that if I may.

MASON CJ: But that is a matter for the person conducting

the inquiry to decide, is it not?

MR MASON: Yes, there would be not - - -

MASON CJ: Customarily whoever is a commissioner or person

conducting an inquiry makes decisions as to the

procedure to be followed. He generally does that
after consultation with counsel assisting.

MR MASON:

Yes, and in the present case with counsel

assisting consulting with those who are present or
represented in the inquiry.

MASON CJ: Yes, and that again is the normal practice of

inquiries of this kind.

MR MASON:

Yes.

I am instructed that a list of proposed

witnesses was distributed to the parties at an
early stage of the inquiry. They have been
requested to indicate the identity of other
witnesses they consider appropriate to be called.
Lists of people that counsel assisting were not
proposing to call have also been distributed.
Parties have been requested to indicate to counsel

or a solicitor assisting if they wish any of those to give evidence. So it is fairly flexible in that respect but, as Your Honour points out, there is no
obligation to call. In my submission, one should
approach this question on an assumption that the
right thing will be done in the inquiry rather than
the converse and that people will act fairly and
accommodate themselves to the actual situation of
the parties as to the way in which the issues
develop.

DAWSON J: One thing that can be said is that the

Commissioner takes a much more active part. It is
not a question of merely holding the balance.

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MR MASON:

That is right, yes, and he can do so with greater

freedom because of the correspondingly lesser
consequences of the report and because of
inquisitorial obligation that is imposed upon him
by statute.

DAWSON J: And in doing so is assisted by counsel assisting.

MR MASON:

Yes.

Your Honours, at the top of page 7 we have

given you a reference to the Builders' Registration
Board of Queensland v Rauber. It is arguable,
although it is not entirely clear, that the Court
of Appeal took an "all or nothing" approach to
statutory implications in this matter. At
page 234, for example, in the judgment of the
President, at the bottom of the page His Honour, in
stating a number of propositions, said:
The obligation to accord the duties of
procedural fairness may be excluded by

legislation. However, for this to be done, it
is necessary for the legislation to be clear.

But what is involved in the present case, in our
submission, is what does legislation have to say
about this particular aspect of procedural fairness
that is in issue in this case? The Builders'
Registration Board case is an example of a
situation where legislation which conferred a duty
upon a particular body of persons was held, because
of its necessary implication, to exclude aspects -
not all aspects - of the arm of nemo debet of

procedural fairness ..

The citation is (1983) 57 ALJR 376. The

passages are at page 377, right-hand column
half-way down to the bottom, in the judgment of
Justice Murphy; 381, at the very bottom of the
right-hand column, in the joint judgment of
Justices Wilson and Dawson; Justice Brennan at 385, left-hand column, G; and Justice Deane 392,

right-hand column about Band C. If I may attempt to distil the proposition
that where a statute confers a jurisdiction, to the
extent that it is necessary for that jurisdiction
to be exercised by the person upon whom it is
conferred, well then aspects of the rules of
natural justice are necessarily excluded.
Your Honour Justice Brennan said something to

a similar effect in Lieschke's case, may I just
give you the reference. J. v Lieschke,

(1987) 162 CLR 447, at 456 to 457. Your Honours,
in paragraph 16 we move to the proposition that has
perhaps been misunde·rstood in the way that the
respondents have responded to it in their written

Canellis(2)

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submissions. What is put is that unlike
Dietrich's case, this is not a situation where an allegation is being made by the State against these
respondents. A fortiori it is not a situation
where the allegation has been made in a formal
indictable trial.
The declaration and stay that is foreshadowed are clearly aimed at the State and directed solely
at the State. This has come about, in our
submission, by a judicial extension or development
of the common law; a big leap, an unprecedented

leap, in our submission. We are not saying that if
a court says to the executive, "I order you to pay
money" that that order is invalid. True it is in
New South Wales, as in some other States, the order
will only take effect out of moneys appropriated by
Parliament. The Crown Proceedings Act says that.
But Bardolph's case makes the distinction between
the obligations of the Crown and how those
obligations are met by funding.
But in a situation where this is judicial

lawmaking of a very significant kind, and where it
is directed solely at the public purse, then there
is every reason, and we would submit every
constitutional reason for judicial restraint,
because of the constitutional principle that
Parliament appropriates moneys, that it is in
Parliament that the hard decisions of hospitals
against justice and the like are taken.
In our submission, the Court of Appeal

recognized that they could not do this with respect
to the argument based on 474G(4) and, equally, in
our submission, should have recognized that it was
equally impermissible to be done in the development
of the common law and that by framing a
declaration, indeed, the court says, "We cannot
order the Government to do this, but we will frame
a declaration", in my submission, which has the

error of endeavouring to use a circuitous device to same effect, the court was falling into the further
overcome a constitutional prohibition.

DAWSON J: Whatever the circuitous device being, it is not

too circuitous, is it, by saying, "Well if you do
not do this the way we say you ought to, you should
not do it at all"?

MR MASON:

It is circuitous in the sense that the legal gun

is directed - the declaration is, in effect

directed at the Commissioner. He is to stop the
inquiry unless a third party, ie the State, who was
party to the litigation but not to the inquiry,
puts the money in. ·

Canellis(2)

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DAWSON J: There is a threat of a stay, is there not?

MR MASON: Yes. Liberty is reserved. Part of the

difficulty - and I will be coming to this in
support of the notice of motion - this being a
situation involving the government, the court has
granted a declaration on the well-established

principle that a declaration will do. You do not
need an order for the law to be obeyed by the
government, but that declaration has, and will
have, the effect that the inquiry will stop unless the money is paid by the government, or unless, of course, this Court overturns the Court of Appeal's
judgment, and, of course, Mr Kalajzich has
something to say about that, although we are not
advancing his interest - - -

DAWSON J: Is it expressed that the Commissioner has a power

to stay himself, as it were.

MR MASON:

Yes, the court has declared, in effect, that the

Commissioner himself committed an error in not
staying the proceedings when it had reached the
stage it had, that these allegations were made and
these indigent respondents said, "We need legal

aid. We have been given $22,000 from the Legal Aid

Commission, we need more". The Court of Appeal, by
way of, in effect, prerogative review of an
administrative decision, held that there was a
legal error by the Commissioner and made a
declaration which obliges the Commissioner to

correct it. ·

MASON CJ:	It comes back to the statement made by the President that the donee of a power is under a duty
not to proceed when the only way in which you can
proceed is to deny natural justice.
MR MASON:	Yes.
DAWSON J:	Is he merely the donee of a power, or is he under

a duty?

In my submission, he is under a duty.
Your Honours, paragraph 17 of the outline refers to
the Legal Aid Commission Act of 1979. If I could take Your Honours very briefly to that to see the
scheme in which legal funding generally, and there
are some independent schemes, but legal funding
generally in New South Wales are dealt with because
our submission, in short, is that this is a scheme
that involves a finite sum of money which comes
from primarily State and federal appropriations, a
statutory commission that exercises the function of
determining priorities, indigents, and the need for
assistance and monitoring efficiency and economy.
What the Court of App;;!al's judgement in effect has

Canellis(2)

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done is side step that and established a principle
that will oblige judges and commissioners
everywhere to consider side stepping that regime
where, concordant with the principles established,
it would be fair not to provide funding.
Your Honours, sections 7 and 8 of the Act

established the Commission as a statutory body.
Your Honours will see that 8(2) provides that the
commissioners come from a range of constituencies.
Section 10(1) establishes that the principal function of the commission is to provide legal aid and other legal services in accordance with the
Act. Subsection 2 gives the commission authority
to determine classes, priorities, principles and
means whereby assistance will be provided, not
necessarily by cash grants, to the private
profession. Section 12(a) imposes on the
commission a duty to ensure that legal aid is
provided in the most effective, efficient and
economical manner and, as one would expect, means
have grown up for assessing and monitoring that
matter.
May I add to the list that is in our outline section 57 of the Act, because that is some
indication of the universal scope of the Act.
Section 57 obliges any court or tribunal, in
effect,. to grant an adjournment if a party to
proceedings before it has sought legal aid. And
subject to various exceptions, the matter must stop
to enable those rights to be explored and
prosecuted on appeal.

TOOHEY J: What is legal aid? Does the Act define what is

meant by legal aid or give a clue as to what is
intended?

MR MASON:

It is certainly not confined to money. It may be

in the form of provision of services, for example,
making available public defenders who are now under

the overall aegis of the Legal Aid Commission.

TOOHEY J: Yes, I was rather looking at not so much the

nature of the service provided but the range of
courts, tribunals, bodies and the like to which
legal aid may be appropriate.

MR MASON:

I am very shortly going to give you a document

that will perhaps answer that. May I just defer it
for one minute.

TOOHEY J: Yes, but

may I just come back to my original

question. Does the Act itself - I take it it does
not define "legal aid". There is certainly no
definition in the definition section.

Canellis(2)

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MR MASON:

No, but 10(1) makes it plain that the commission

can provide legal aid or legal services.

TOOHEY J: Yes, I was in error in saying there was not a

definition -

MR MASON:	Yes, not a very helpful definition.
TOOHEY J:	- - - but what I really meant was it means legal aid under the Act, which is a curious sort of
definition.

MR MASON: Section 30 may cast some light on it - no, I do

not think it does, so I will pass on. I am not
sure whether I have been helpful, but I do not
think I can. If the answer comes to me I will
perhaps provide it later if I may, Your Honour.

TOOHEY J:

Is it in issue that an inquiry of this sort is an

inquiry which could properly attract a grant of
legal aid under the Act?

MR MASON:

I do not believe it is.

It is not within the

current guidelines of the commission, and it was
the commission that made an ex gratia payment.
That is shown in some of the early correspondence
in the appeal book, but it is within the statutory
power of the commission to grant the legal aid that
was sought in the present case.
Your Honour, the application that was made is

at page 28 of the appeal book - that is

Mr Canellis' application. The accompanying letter~
arguing for the aid is at page 24, and the
commission's response is at page 38, in which there
was a discretionary determination in Mr Canellis'
favour and an indication that he could appeal to
the Legal Aid Review Committee if dissatisfied with

that determination. I think he did appeal. I am
certainly not suggesting the appeal was successful,
but he certainly had appeal rights.

BRENNAN J: Mr Solicitor, I see that section 10(2)(d) casts

upon the commission the duty of specifying -

principles ..... to be applied in determining
applications for legal aid.

Did I understand you to say that the principles
that have been specified do not extend to this
case?

MR MASON:

Yes, that is correct.

BRENNAN J: Or is there some provision of the Act which

requires the commission then to act in accordance

Canellis(2)

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with the principles that are specified, any express
provision or -

MR MASON:

I think not.

I think their situation is that

they are free to depart. They are certainly not
bound by their principles as a matter of policy.

BRENNAN J:

It may be a matter of some significance because

if anything turns on it, if they were bound by
them, then there could be no duty on their part to
provide legal aid contrary to them.

MR MASON: I do not understand them to be legally bound.

BRENNAN J: Perhaps your junior could have a look at it.

MR MASON:

At page 38 of the appeal book there is a

statement in a letter which was tendered by one of
the respondents, the second paragraph of that
letter, from the Commission that:
aid is not available for these types of
proceedings. There is no Commission policy or
guideline for the granting of aid to witnesses
attending such inquiries or parties thereto.

The Legal Aid Commission was a party to these

proceedings in both courts below. No relief was
sought against it and there was no judicial review
sought with respect to their decision.

BRENNAN J: Well, by whom was the money to be paid in order

that natural justice might be done in the view of
the Court of Appeal?

MR MASON:

I think in formal terms it did not matter.

was a question that unless the money was paid, the
proceedings would stop but in terms of substantial
intent, it was the State and not - the State as
distinct from the Legal Aid Commission because they

were separately represented in the proceedings

before the Court of Appeal. The State was a party
to the declaration because it was a party to the
proceedings, albeit that the declaration was
primarily declaring the legal duty of
Commissioner Slattery.

BRENNAN J: Yes.

MR MASON: In our submission, this is, with respect, a

fallacious process of reasoning that one can create
an obligation that really is directed at someone
who is not the repository of the power, and give
the repository of the duty an option not to comply
if a third party does not perform some intended
act; in this case, paying money.

Canellis(2)

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Your Honours, section 63 of the Act provides, in effect, for the sources of money that come into the legal aid fund, which is referred to in
section 62. There are many sources, but they
include:

money appropriated by Parliament -

63(l)(b), and also in paragraph (c):
money received by the State of New South Wales
from the Commonwealth for the purposes of
legal aid -

Your Honours will see in a minute that those are
the two main sources of legal aid funding.
Section 72A(l)(b) provides that:
The State may ..... enter into an agreement

or arrangement with the Commonwealth for or
with respect to -

provision of money by the Commonwealth, and that
is, in effect, what has happened.
May I hand to the Court a document which is

referred to in our submissions - paragraph 18 of
the submissions - a document called Legal Aid
Funding in the '90s, A Submission by the Law
Council of Australia, and it is argumentative in
part, but the very argumentative point is part of
the point we seek to make, namely, that this is, as

the Court would understand, a contentious issue as
to who gets the money, but it is also informative.

BRENNAN J: Are we really concerned with this? What is the

legal point to which this is directed?

MR MASON:

The legal point is that provision of legal

funding is a governmental responsibility and not a
judicial responsibility and that courts may not, by

the framing of relief such as occurred here,
effectively seek to make decisions re allocating
funding priorities.

MASON CJ: If that proposition is correct, its correctness

would be established, I would have thought, by
something other than a submission by the Law
Council of Australia.

MR MASON:

I accept that, Your Honour. Unless the Court

stops me, may I simply refer to page 10 where there
is a table about funding, where the money comes
from from legal aid; page 41 in appendix A there is
some more information about the sources of legal
aid funding; and appendices Band C which set out

Canellis(2)

4/5/94

the guidelines of the various commissions relating
to when legal aid is available for various civil

and criminal matters. The point I wish to simply
make is that there are elements of contentious

judgment involved. Do you give it for committal
proceedings and not trials; do you give it for environmental matters, not family law matters?
These are matters which, in my submission, if

one applies the approach, for example, discussed in
Trigwell's case, that it is beyond the proper
competence of a court in a particular piece of
litigation, a fortiori, a commission in a
particular inquiry to be investigating. Unless one
investigates it in a macro way, there is
necessarily going to be a skewing by virtue of the
making of orders such as occurred in the present
case. That is the proposition made in
paragraphs 18 and 20 of the outline.
Paragraph 19 seeks to emphasize by reference

to appendix B of the submissions the potential
impact of the case, and I realize I am not seeking
a grant of special leave. I have that but, nevertheless, since what is involved, in my
respectful .submission, is a question of whether the
common law should be changed by determination of
the Court or Appeal or this Court, the impact or
potential impact of the decision is very
significant. The one amendment I would make is in
relation to the Local Government Acts by adding
reference to sections 430 to 433. There is a
particular inquiry going on at. present .in.New South-
Wales that brought that to my attention.
But in each of these cases there is a

statutory right for affected persons to appear and
cross-examine witnesses and it stands to reason and
is inevitable that in many of these cases, this
will occur because the persons' reputation
interests are affected and the very factors which

the Court of Appeal took into account may
potentially be involved.

Your Honours, it is clear that the

Court of Appeal intended, by its declaration, that
legal representation at a fairly significant level
would be provided in the present case, and I refer
the Court to pages 241 and 245 of the appeal book
for that proposition.
May I then turn to what I call the fall-back

position, namely if there is not an absolutist
provision, as I have contended, whether in the
facts of this particular case it was appropriate
for the Court of Appeal to make the decision it
did. At page 188 of the appeal book in the

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judgment of Mr Justice O'Keefe - and it is a
passage between 188 and 190 - His Honour addressed
what the issue was, namely should he effectively

grant a stay of the proceedings. He acknowledged
in this passage that it was a discretionary matter,
that there were balancing factors, that fairness
was not an absolute situation; he had regard to the
particular situation.
At the bottom of page 189 His Honour referred to the views of the Commissioner in which the
Commissioner himself declined the stay, because
after all it was the Commissioner's decision which
was effectively being reviewed by administrative
law proceedings, and His Honour said, at the top of
page 190:
Weighing all the considerations relevant to
the exercise of the discretion -

he was of the opinion that on balance that it was
not a proper matter to grant a stay.
Now, the Court of Appeal recognized that in effect they were, on one level of situation,
dealing with an appeal from a discretionary order
and that some of the principles that related to stays, Jago's case and the like, were involved.

BRENNAN J: You say this was by way of judicial review of

Mr Slattery's decision.

MR MASON~ Yes.

BRENNAN J: The summons on page 1 does not suggest that. It

seeks an order for the stay.

MR MASON:

I submit that that is a remedy that is part of

the armoury of judicial review. It is like an
injunction - - -

BRENNAN J: It is an injunction, I would have thought. It

is an injunction to prohibit the repository of
statutory power from exercising it.

MR MASON:

Yes.

It is part of the supervisory jurisdiction

of the supreme court to restrain an illegal
exercise of power.

BRENNAN J: Yes, but that is a different thing from

reviewing the decision itself, is it not? I mean
it is not a question of setting aside the decision.
It is a question of the supreme court interfering
to prevent the exercise of a statutory power.

MR MASON:

But where the power had been addressed and

refused below, however one describes the formal

Canellis(2)

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remedy, the substance of the matter was a second
guessing, or a revisiting of the matter, with the
Court of Appeal being able to redress it, but only
if there was a legal error.

BRENNAN J: One can see that if there were a review of the

decision below, one would expect to find either
Wednesbury unreasonableness, or some error of law.

MR MASON:

Or denial of natural justice, which is what they

found.

BRENNAN J: Well, denial of natural justice in the exercise	of the power to inquire.
MR MASON:	Yes, and they said the Commissioner is about to

deny natural justice and granted, in effect,
prohibitory remedies, designed to stop him doing
that.

MASON CJ: That certainly seems to be the way the Court of

Appeal treated it. If you look at page 211, line 8
in the judgment of the President, line 10
particularly:
They raise the question whether, in the
circumstances proved, procedural fairness
required the Commissioner to adjourn or stay
the inquiry so far as it involved the
participation of Mr Canellis and Mr Elkins.

MR MASON:

Yes.

The passage at 237 and 238 recognized in

the judgment of the President that this was not a
de novo review and that it was an appeal from
Justice O'Keefe's decision, and the court had to be
satisfied that Justice O'Keefe committed some
error, and Justice Kirby then referred to three
matters that demonstrated error which, in effect,
opened the door to a re-exercise of the discretion.
Our submission is that the three matters he
referred to were - - -

DAWSON J: What was the discretion that Justice O'Keefe had?
MR MASON:	The discretion to, by way of supervisory relief,

stay proceedings which had become, or were about to
become, unfair.

DAWSON J: Is that discretionary, if it exists?

MR MASON:

If the power exists at all, it is to be exercised

by reference to what, in Jago, was referred to as
discretionary functions. It can be exercised
either by the trial court, or the repository of the
power or, if they did not do it, by way of
supervisory relief from the supreme court.

Canellis(2)

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DAWSON J: That was the court supervising its own functions.

This is the supervision of some external - - -

MR MASON: In Jago?

DAWSON J: Yes.

MR MASON:

I think Jago was one where it was a district

court judge.

DAWSON J: Yes, but it is the courts.

MR MASON:

It was the Court of Appeal sitting, not by way of

appeal from the district court judge, but by way of
giving prerogative relief against the district
court; that power being assigned to the Court of
Appeal within the Supreme Court Act.

BRENNAN J: But is there any discretion by way of judicial	review?
MR MASON:	Your Honour is saying if one finds a denial of

justice is there a discretion to refuse relief?

BRENNAN J: Yes.

MR MASON:

There may be but that is not the discretion I am

speaking about.

BRENNAN J: That is exactly what I am trying - if it is a

question of a discretionary grant of an injunction
in the exercise of equitable jurisdiction then one
approaches it in one way; if it is judicial review
then one approaches it in another. Perhaps that
might be sounding old fashioned these days but it
still a way which appeals to me.

MR MASON:

I submit it was judicial review when it was with

Justice O'Keefe but, when it went to the Court of
Appeal, they were faced with him having refused
judicial review because applying the principles

relating to stays he was not satisfied in his
discretion that there was this level of unfairness
that called for a stay and the Court of Appeal was
not at liberty to treat that as open slather and,
indeed, the Court of Appeal in these passages I am
about to come to endeavoured to assign legal error in Justice O'Keefe, in effect, so as to reopen the
door for the exercise of the prerogative
discretion. I am not talking of discretion in the
equity injunction sense but the discretion that is
used in the sense of cases like Jago and McGregor,
the medical tribunal cases, where the supervisory
jurisdiction is used to stop an intolerable
fairness by'way of prerogative relief.

Canellis(2)	39	4/5/94
TOOHEY J:	Does Jago talk about discretion?	If the Court

concludes that a fair trial cannot be had in the
particular circumstances, where does the discretion
arise?

MR MASON:

Perhaps balancing is a better term than

discretion: a balancing of various factors with a
need to be satisfied that the matter is clearly, in
the vernacular, going off the rails before
interfering with the decision of the repository of

the power. My submission is that that is the way
Justice O'Keefe approached it and he found the
balance one way and the Court of Appeal was not
entitled to start afresh without finding error of
the Norbis v Norbis type in relation to
His Honour's approach.
The three errors that were assigned, at

pages 237 and 238, the first was this incorrect

statutory provisions. But if one looks at page 51
of the appeal book one sees that Mr Sullivan, who
represented one of the respondents, at the very top
of the page, referred Justice O'Keefe to the
amending provision which is said to have been
overlooked by His Honour.
The more substantial point is that there

really was no difference between the old and the
new provisions. At page 254 they are both set out.
Section 475(3) is set out at line 10 and 474G(4) is

set out at lines 20. The only two differences of
any substance are the use of the word "is" as
distinct from "maybe" and the additional
requirement in the later section that the person
whose character is irnpuned be a person who is a
witness at the trial. But neither of those
distinctions had any substantive operation in the
context of the present case.
Messrs Canellis and Elkins clearly satisfied

each test and had a statutory right of standing. So this was, with respect, just a pleading point that the court latched on to and not indicative of
any relevant error.
The second error assigned is referred to at

the bottom of 237 where His Honour Justice O'Keefe
stated the question as being in effect whether
Dietrich should be extended. In our submission,
that was a correct characterization of the issues
involved, particularly the issues involved before
Justice O'Keefe and does not involve a legal error
that justifies a re-exercise of the balancing or
discretionary function.
The third point.is the one that I have

referred to already where His Honour on one view

Canellis(2)

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tended to deny the need to balance entitlements

other than those of the respondents. Our
submission is that Justice Kirby was in error
rather than Justice O'Keefe in that regard.
At paragraph 22 of the outline we then address

what we submit were the errors of the Court of
Appeal if one opens the absolutest door and looks
in. We submit that in drawing the line where they
did and creating the precedent that they did, they
simply overlooked factors that will allow lots of
people in and were factors that should have been
taken into account as producing an opposite result.
There was simply no examination of whether

this risk that the respondents were facing was a

real risk. By that I do not mean whether there was
a risk that if events fell out they would be
committed or not, I simply mean that the Court said
that this allegation has been made against them,
therefore, because if the allegation is made good
and four or five other things happen, the right
arises and that, in our submission, was a failure
to have regard to a very relevant factor.
Justice O'Keefe at page 184 summarizes and we

would respectfully adopt in the paragraph in the
middle there, the points of distinction between the
present case and Dietrich. There are just so many
steps to go through before there could be any sense
of prejudice or risk that might approach the
situation of Mr Dietrich. As the court there
appeared to draw the line in terms of a fair trial
on a serious charge thereby excluding committal and
steps antecedent to committal, we would submit that
the Court should maintain the line at that
position.
The court acknowledged in various parts of the

judgments that the privilege against

self-incrimination existed but appeared to give
those factors no weight in the calculus that the
court adopted in determining that these people
needed lawyers as well as their common law rights
and the protection of the Commissioner and the

counsel assisting. No reference was made to what
we have described as the Mahon rights of the first
respondents and the protection that they would
afford in the event that the risk that they fear
comes home.

Adding paragraph (d), as it were, to 22, we

submit that the court paid no regard to the other
obligations of the Commissioner and of counsel
assisting. We simply refer, Your Honour, to
passages at page 87 of the appeal book at line 5,

Canellis(2)

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where the Commissioner acknowledged his
responsibility for the respondents: page 92
line 26, and 226 in the judgment of
Mr Justice Kirby.
I have already indicated the submission that

the computer complexity scenario, which is referred
to at pages 223 and 224, is an overstated and
remediable problem, and non sequitur that those sort of difficulties are addressed by providing counsel.
Your Honours, at paragraph 23 reference is

made to the nature of a 475 inquiry, and the
submission that the Court of Appeal failed to have
regard to various factors. One which I would seek to highlight is at page 241 of the judgment of the learned President, where His Honour said at line 7:
If the Commissioner reported in a way which cleared Mr Kalajzich, the death of
Mrs Kalajzich would remain unrequited. The
concern to punish those responsible for the
brutal murder of Mrs Kalajzich, to uphold the
integrity of serious criminal trials, and to
punish those guilty of perjury, could
effectively require the prosecution of the
appellants.

With the greatest respect, that was an unintended
but nevertheless significant slur upon the
integrity of the Director of Public Prosecutions
process which provides an independent and presumed
and actual safeguard against that very
consideration which should not have been taken into
account by His Honour as a possible risk factor.
His Honour did not, in our submission, pay
sufficient attention to the protections provided by
committal and, being a murder charge, committal is
the one exception which, under the current
guidelines of the New South Wales Commission, the

accused gets legal assistance. Of course, at trial
both Dietrich and the legal aid scheme would
provide assistance.
Your Honours, at this stage, may I do a brief

digression to the American position. Your Honours
have appendix A to our submissions, a reference to

some overseas materials. May I take Your Honours
to page 5 of that submission and at the top of the
page there is a passage quoted from a case called
Mathews v Eldridge, 424 US 319, at page 335. This
has been repeatedly revisited by the American
Supreme Court as providing a calculus, a form of
calculus for determining whether due process is
engaged in a particular situation.

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As Your Honours know, the Sixth Amendment to the United States Constitution provides a right to
counsel legally aided in criminal matters, but not
civil, but through the due process and equal
protection of the law provisions, the court has
developed a common law jurisprudence relating to
when rights, such as a right to counsel, will be
included, and there are three factors, the
Mathews v Eldridge factors, which are taken into
account in determining the outcome of a particular
case.
Looking at the first, which speaks of the

"private interest affected", our submission is that
the respondents here suffer no necessary impact on
their liberty or even on their reputation, that the
likelihood of an adverse report was not considered,

or not given sufficient weight, and certainly does
not tilt the balance in favour of this new legal
principle. Secondly, to establish doubts about
Mr Kalajzich's conviction is not necessarily to
make a finding adverse to the respondents. incarceration is subject to evidence emerging; a decision to prosecute properly made; committal;
and, trial.
Fourthly, their reputation interest has been most exaggerated. Unlike Mr Ainsworth, Mr Elkins
stands convicted for complicity in the murder of

Mrs Kalajzich. Mr Canellis, by his own evidence -
pages 213 and 214 - was a paid hit man who had some
earlier involvement in the matters that led up to

the killing. I am not saying that reputation
interest does not attract natural justice, but I am submitting that when one is considering the content of natural justice and its application to this
situation, these factors are not to be disregarded.
The second of the Mathews v Eldridge factors

is the risk of an erroneous deprivation of such
interest through the procedures used and the

probable value, if any, of additional or substitute
procedural safeguards. We would submit that in the present case there are contradictors present at the inquiry; that the Commissioner, unlike a trial
judge, can enter the ring to a degree and that when
Justice Sheller, at page 260 of the appeal book, quoted from Powell v Alabama, at the very bottom of
the page, the whole thrust of the page was, in the
judgment of Justice Sutherland that he quoted:
But how can a judge, whose functions are

purely judicial, effectively discharge the
obligations of counsel for the accused?

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Now, I am not saying there are not limits, but I am
submitting that there is a distinction to put into
the calculus.
Thirdly, one returns in this situation to the

goal of the inquiry, which is not focused upon
making adverse findings against these respondents.
The third of the Mathews v Eldridge factors is the
government's interest, including the function
involved and the fiscal and administrative burdens
that the additional or substitute procedural
requirement would entail. Here, I submit - I have,
Your Honour the Chief Justice's and
Justice McHugh's remarks in Dietrich in mind in
making this submission - the costs of this decision
are potentially enormous, and the precedental value
cannot necessarily be contained. It will certainly
lead to a spate of applications which, themselves,
have a cost factor involved.
There is an additional factor, that the right

that is asserted by the respondents depends upon an
assessment of their indigence in a particular case,
of the needs for counsel in the particular
situation, and presumably, if properly
administered, involves a monitoring of that
expenditure. These are functions of a Legal Aid
Commission, but these are functions which an
ephemeral inquiry or even a judge cannot
effectively perform and, certainly, cannot do so
without being diverted from the proper
administration of the primary task at hand.
There are two American cases I wish to briefly

take the Court to. The first is Lassiter v
Department of Social Services - - -

MASON CJ: What are they going to tell us, Mr Solicitor?

What are you going to them for?

MR MASON:

They illustrate the factors - due process, in
some circumstances, in the American jurisprudence,
includes the provision of legal assistance in civil cases. They contain some discussion of the factors
which the courts take into account.

MASON CJ: But it is a minefield, is it not? I just wonder

whether or not it is going to be of sufficient
assistance to warrant the trouble of looking into
it.

MR MASON:

I would be happy, if the Court has no objection,

just to give you the references to the pages:
Lassiter v Department of Social Services of Durham
County, (1980) 452 US 18, particularly at pages 27 to 32, and in the dissenting judgment of

Justice Blackman, 36 to 38. The second decision is

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called Anonymous Numbers 6 and 7 v Baker, (1958)
360 US 287, and the passages are at page 291, where
the role of the investigatory body is described, and page 295, where the reasons for withholding legal assistance to witnesses, even though they are
witnesses who might, if the cards fell out badly, find themselves facing criminal charges where the
court nevertheless said, "Due process does not
compel provision of legal assistance".
Your Honours, the other written submissions

may be permitted to speak for themselves but may I
then briefly turn to the notice of motion which is
made returnable today before the Court and the
supporting affidavit of Peter Bowe.

MASON CJ:

Mr Solicitor, would it not be more appropriate to

defer that until we have heard the argument in the
case from all parties, including the interveners.

MR MASON:

I am certainly content to do that and I agree

with what Your Honour says.

MASON CJ: Very well. Yes, Mr Solicitor for Tasmania.

MR BALE:

May it please the Court. Attached to the outline

of argument which Your Honours have already
received is a copy of the unreported decision in
Helfanbaum. I am indebted to my learned friend,
the Solicitor-General for New South Wales, for
producing to Your Honours a copy of the reported decision. I confess I have got so accustomed to
waiting for at least two years for a Tasmanian
decision to be reported it did not occur to me that
Helfanbaum had been reported and I will,
accordingly, when I make reference to it, refer to the copy provided by my learned friend rather than the unreported decision which is attached.

MASON CJ: But it does not help us very much in any event,

does it, whether reported or unreported?

MR BALE:

Not greatly, Your Honour.

It is, in our

submission, simply an interesting example of the
point that one should not expect that an indigent
person will receive legal funding other than in an
important criminal trial where significant
interests are at risk.

MASON CJ: And that is what the judge decided.

MR BALE:

It is only for that purpose that I will refer to

it. Your Honours, however it might be expressed,
it is our contention that the essence of the
respondents' argument is that where a statutory
inquiry by a government official is likely to
affect the interests of an indigent witness before

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- .

it, the inquiry will be unfair unless that witness,
already having the full right to be heard, is in
addition accorded funding for legal representation
to better exercise that right if he wishes to have
such representation.
Whilst that is a recognizably different thing

from saying that such a witness has a right to
funding for legal representation in those
circumstances, the substantial practical operation
of such a principle is, we would contend, the same
as if it were a legal right. That is to say, it
will attract the remedy that the proceedings will
be postponed - and whether by adjournment or stay
or otherwise does not matter - until representation
is provided.
Whilst this Court in Dietrich held that the

provision of the legal representation to an
indigent accused, in a serious criminal trial, can
properly be seen as part of the common law right to

a fair trial, that is and should, we submit, remain
a far cry from recognizing, as has never been
recognized before, that the provision of legal
assistance generally is an incident of the common
law right to procedural fairness in an inquiry by a
government official. Such a broadening of the
concept of procedural fairness is not supported, we
submit, by the rationale which underpinned the
majority judgments in Dietrich and, as well, is
contraindicated by a number of highly persuasive
factors.
The rationale in Dietrich was that no one

should be exposed to the risk of conviction and of
the consequent loss of liberty through being unable
to afford legal representation. That is to say,
the exercise of the power to stay proceedings,
pending the availability of representation, was
attracted by the seriousness of the consequences
which might flow from failing to cater for the

accused's interests in having representation which
he sought but which he could not afford.

MASON CJ: But, are you not pushing at a door that is wide

open, in the sense that the Court of Appeal did not
really rely on Dietrich?

MR BALE:

What we say is that the Court of Appeal

effectively extended Dietrich; did not rely on it,
I accept that, Your Honour, but extended the
principle of Dietrich to an area which it had no
business extending it to.

MASON CJ: Well, if they did not rely on Dietrich, I do not

really see how they extended Dietrich. I can see

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that the practical effect may be described as an
extension of Dietrich but only in that sense.

MR BALE: That is all I am talking about, Your Honour. The

practical effect was to say that the principle
that was recognized by the majority in Deitrich
has application in the more general sphere of
governmental inquiries.
Your Honour, I would submit that it was made

perfectly clear by the majority in Dietrich that
they limited their application of this principle
which we contend has been extended to serious
criminal trials. There was repeated reference -
and I have given that in the outline - in those
judgments to their application only to serious
offences. In particular may I refer Your Honours
to the judgment of Justice Deane at page 336
point 4 of the report where he goes further and
says expressly that the principle may well not
apply beyond that area.
Whilst we would accept that there may be force

in holding that the right to a fair trial, or
rather the prohibition against conviction by an
unfair trial, embodies a requirement that a person
unable properly to defend himself should have legal
assistance if he wishes and is not able to afford
it. That rationale has no place at all in an
inquiry where no one's liberty is capable of being put at risk; where the central issues are those of
public interest as distinct from interests personal
to the witness - and in this case, of course, as
distinct from the interests of Mr Kalajzich who was·
suffering a term of imprisonment - where the very
nature of the proceedings is such that a witness is
able to be afforded by the inquirer, considerable
assistance in making his contribution to the
inquiry; where the cost to the public purse of
funding representation to every indigent witness
with a legitimate interest exposed could go so far

as discouraging the appointment of such inquiries
which ought to be held.

MASON CJ:

I do not think you need to spend much time expanding on all the consequences that conceivably

result from the decision in this case.

I think the

Court would be mindful of possibilities.

MR BALE: Could I draw the Court's attention to just one

more then, Your Honour. That would be that where
the application of the rationale could operate to
impede implementation of the legislative purpose in
establishing or providing for the inquiry itself,
and in making that reference I have in mind the
observations of Your· Honour Justice Brennan in

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Lieschke to which reference has been made. The
passage appears at pages 456 to 457 of that report.
I will not quote them, but I would submit that

the comments from the judgment of Justice Cox in Ex
parte Helfenbaum are instructive and helpful, and
lead, in our contention, to this: that the proper
view ought to be that other than perhaps in a very
exceptional case, and we would contend that this is
not one, the nature of an inquiry is such that the
interests of a witness who has been afforded a full
right of participation will not be so seriously interfered with as to render the inquiry unfair
merely because the witness is unable for whatever
reason to obtain legal representation before the
inquiry.
Your Honours might then say, "Well, if this is

not unfair, what is?" My answer to that would be
take the case of a person who has no English; take
the case of a person who is deaf and dumb; even
there, we would contend, it is not so much a matter
of providing representation for fairness as perhaps
providing an appropriate interpreter so that an
understanding of the proceedings can be given, and
so that witness's case can be put through the
interpreter.
One rather has in mind the situation of where

a witness was so mentally incapacitated that it was
simply impossible for the witness to participate in
a meaningful way in the hearing without legal
assistance, or perhaps where the issues were so
technical, either legally or otherwise, that it was
impossible for the witness without appropriate

representation to be able to put a case at all. In
those sorts of circumstances it may be that there
is a basis for saying that there would be
procedural unfairness if the right of
representation were not assured. But otherwise, we
would contend that the principle ought to be that

in other than serious criminal cases there will not
be a denial of natural justice generally by a
failure to provide legal representation and that it
is only when there is a real exception to that rule
that a court will interfere.
Finally, Your Honours, we would simply

emphasize what I believe has already been said by
my learned friend, the Solicitor-General for New
South Wales, and it certainly appears in the

outlines of others. It would be our contention
that if the procedural fairness is to embrace the
concept of legal representation to indigent
witnesses before inquiries so that it becomes a
matter of State funding of that legal
representation then that should be achieved by

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action of the legislature, not through innovation
on the part of the judiciary. In this context, we
respectfully embrace and adopt the views in that
regard expressed by Your Honours Justices Brennan
and Dawson in Dietrich which, in our submission,
have proper application in this case. Those are my
submissions, may it please the Court.

MASON CJ: Thank you, Mr Solicitor. Mr Solicitor for

South Australia.

MR DOYLE:	Do Your Honours have our outline of submissions?
MASON CJ:	Yes we have, and we have read them.
MR DOYLE:	Your Honours, in our submission, the Court is

confronted with a choice which is to be made,
having regard to matters of principle and matters
of policy. Could I just mention two or three
matters of policy; I will not cover ground already
covered, but which, in our submission - call the
matters pragmatics, or policy - which are relevant
to the outcome here.
First of all, the potential impact of the

relief sought on the interests of the convicted

person. It may seem paradoxical in a way that the
relief sought here by a person who has a lesser
stake in the inquiry might stultify the inquiry
which bears much more directly on the position of
the convicted person.
The second, which is related to that, is the oddity of this form of relief being available to
persons in the position of the present respondents,
when inherently it cannot be available to the
convicted person because, of course, the remedy of
a stay is of no interest to the convicted person.
And so, again, it is an odd result that causes one
to think.
The other point is that this is an inquiry, in

our submission, to assist the executive in deciding on an exercise of the prerogative of mercy, and the
position of the respondents is very much secondary
in that. This inquiry is, in our submission, in no

sense, pointed at them. Now, they are the only
pragmatic matters I want to mention.
Without developing our submission, could I

just make this point, Your Honours, apropos of
Dietrich, although as Your Honour the Chief Justice
says, this may be knocking at a door which is open,
because the decision was not based on Dietrich. In our submission, a convenient way of considering the
position is to ask: how does one get to a different result in this case, compared with Diet.rich? And I

Canellis(2)

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simply want to put a short submission on that
basis.
In our submission, Dietrich first of all

invoked the "right" to a fair trial, and I know
that is not a precise term, but taking it as it was understand in that case and, in our submission, the right to a fair trial goes to matters both of
substance and procedure. For instance, the
exclusion of evidence where the prejudicial effect
outweighs the probative value is often sourced back
to the right to a fair trial. So, that right
actually goes to the substance or the outcome of
the matter, not just to procedures. So, that was
the right invoked.
The second thing is that the forum in which

the right was invoked was a court which clearly had
inherent powers which enabled it to vindicate the
right and, secondly, in our submission, a court is
a body which, in the terms of the oath which I
cannot render exactly but, is obliged to do right
to all manner of men. A court is not there to
produce a finding or an outcome~ the court is
there to do justice as between contending parties,
and that is another, in our submission, very
significant factor about Dietrich. The third
factor about Dietrich is that, which is perhaps
obvious, it was a trial to which Dietrich was a
party facing an adjudication which would bind him
and effect his liberty.
When we turn to the present situation and say,

"Well, now what are the differences which might, as
a matter of principle, justify a different outcom~,
and which to many laymen would seem inexplicable?",
we point to these. First of all, the claim here
invokes the principles of procedural fairness -
compare with the right to a fair trial - which, we
submit, naturally relate to how the tribunal
conducts itself to things within its own control,

and so we draw that distinction between procedural

fairness, and the right to a fair trial. We do not
suggest it is a chasm which cannot be bridged, but
we submit it is a relevant difference.
Secondly, the forum in which the right is said to arise is an administerative inquiry to assist
the executive in the discharge of its functions.
It is not a court charged with doing justice as
between contending parties.
Thirdly, while there may well be powers

implied from the statutory provisions here, the function is clearly to report, compare with the
court, the function of which is to administer
justice.

Canellis(2)	50	4/5/94
MASON CJ:	Mr Solicitor, we will adjourn at this point and resume at 2.15.	Can I ascertain how long it is

thought this case will now take for the purposes of

listing particularly in relation to tomorrow. The
initial estimate was that this case was going to

take a day. Does the participation of the
interveners mean that the length of the case has
significantly changed?

MR DOYLE:

Your Honour, I expect to be another ten minutes

and my understanding is that the other interveners
expect to be 10 to 15 minutes a piece at most and
some shorter.

MASON CJ:	Mr Jackson and Mr Einfeld, what are your views?
MR JACKSON:	Your Honour, I doubt the case will finish

today. I do not think it will go terribly long
tomorrow and my own estimate is that I would be
somewhere between an hour and an hour and a half.

MASON CJ:	Mr Einfeld, do you share that view?
MR EINFELD:	Yes, Your Honour.

MASON CJ: Thank you, the Court will adjourn until 2.15 pm

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

MASON CJ: Yes, Mr Solicitor.

MR DOYLE:

If the Court pleases, I was submitting to the

Court the basis on which, as a matter of principle,

distinctions could be drawn between the outcome

here and that in Dietrich. The third was that
while there may be powers implied from the
statutory provisions, the statutory function here
is to report and, in our submission, the statutory
duty is to report and one contrasts that with the
position of a court with the duty of administering
justice as between the parties. In that context,
without reading from it, could we just refer
Your Honours to the passage in Grassby v The Queen,
(1989) 168 CLR 1, at 17 and 18, where Your Honour
Justice Dawson, in a judgment which was, I think,
concurred in by most members of the Court, saw that
as a significant factor in relation to a magistrate
or justice of the peace dealing with a committal.
Your Honour there placed heavy reliance on the fact

Canellis(2)

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that the statutory scheme was indicative of an
obligation to proceed and dispose of the matter.
So our fourth distinction which draws on that line of thought is that in so far as the judgment
below depends upon a common law rule, in our
submission, one cannot have a common law rule which
is either inconsistent with or stultifies the plain
statutory function and duty, and it is such a
common law rule which the court below has found.
The ordinary rules of procedural fairness one might say looking at it in a pragmatic way might slow the inquiry down a bit, but in a sense they are all

directed towards enabling it to proceed in a
particular way. Here, the sanction is the actual
stopping of the process.
The final distinction which is an obvious one

is that the respondents here are not parties to the

effect on their liberty. proceedings. They face no adjudication with no
Just two other things, Your Honours: first,

could I add something to paragraph 14 of our
outline. There is a reference there to section 27,
that is, to the Criminal Appeal Act, and could
Your Honours add that.

Finally, could I return to the point

Your Honour Justice McHugh made this morning which
seemed to be along the lines that this case might
call for some departure from principle because of
the appearance of a lack of fairness.

McHUGH J:

Not departure, extended application.

MR DOYLE: If Your Honour pleases. In our submission, while

obviously in considering the correct outcome here
the Court considers matters of fairness, in our
submission, there is a limit to the extent to which
that line of argument can be used, and without
wanting to go over trite points, first of all, the

courts do not always intervene under common law
principles to prevent unfairness. For example, the
decision to prosecute may be as unfair as one
likes, but at least so far it is accepted the

courts cannot intervene in relation to that. So
first of all, the courts only intervene sometimes.
Secondly, it is clear the intervention of the

courts will usually be triggered by some interest
being affected, and the form of intervention may
also depend upon the nature of the interest and so

contrast liberty as against reputation.
Furthermore, the cases show there are certain levels of protection. So in Dietrich we seem to

Canellis(2)

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have seen one level of protection. On the other
hand, in other areas, again so far it is clear, the

most one has is the right to be heard. And then
there are certain stages of intervention which may

be material. So in Dietrich we saw the right to

representation at trial. One might think there may
be a different outcome for a committal.
All those matters, in our submission, are

clearly very important as a matter of principle.
And so while unfairness is a thread which runs
through these matters, in our respectful submission

to say, "Well, this looks unfair. Does it not
dictate a certain result?", is to not give adequate
weight to the way in which, as a matter of law,
these situations are analysed and the way in which
unfairness works throughout them.
It could just be tested if one considered what would happen if the executive, instead of
proceeding as it did, simply dealt with the matter
internally and asked someone within the executive to provide a report to the minister, on the basis
of which he would make a recommendation to the
Governor. In our respectful submission it is most
unlikely that any duty of fairness would be
attracted if it were done that way.
One has to ask then, "Why does the result,

which is sought here, follow simply because of the
way in which the matter has been handled? Is it
because there is a public inquiry? Is that the
factor?", to which the answer could be made, "It
does not have to be a public sitting." "Is it

because there is a public report?" On our reading
of the section one assumes the contrary, that

normally the report would not be public. So one
says, "Is it because the person can be required to
be a witness?", and if one says, "That is what
makes the difference", you have to ask, "Why does
the fact that the person can be required to be a

witness generate the right to representation at
public expense?"
And, in our submission, if you analyse it that

way, it is not, we would submit, particularly
obvious why that particular factor should generate
the right to representation, not while the person
is a witness, which might be one thing but in
respect of what generally happens at the inquiry
thereafter that may affect that person.

McHUGH J: But ordinarily the rules of natural justice do

not apply until some public official is going to
exercise, or may exercise, power against an
individual in relation to a person's rights or
legitimate expectations. Here we are in a

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statutory context where, in a real sense, the
respondents are parties to the proceedings, because
it appears their character may be affected by the
inquiry and there is a statutory obligation on them
to be allowed to be present at the inquiry and to

examine any witnesses. Now surely, in addition,
the rules of natural justice would require that
those persons be able to call evidence at the
inquiry in response to allegations put against

them. Now, if that is so, one is then moving into
a context which is getting close to the Dietrich
context.

MR DOYLE:

Yes.

Two submissions in answer to that,

Your Honour. First of all, in our submission, to call them "a party" is, with respect, a permissible inaccuracy, in th-a~ they are a party only because they foresee that· ;t:l:le outcome may adversely af feet
their interests.

McHUGH J: But they are a party in the sense that, say in

Bread Manufacturers v Evans, where the bakers were
entitled to be informed of material that the
Commissioner was going to act on, simply because
they have a right of appearance at the inquiry into
the price of bread.

MR DOYLE:

Yes. Well, I would still, with respect, draw the

distinction between the person who is a party in
the sense of potentially faced with a binding
adjudication and a person who is a party in the
sense that justice requires that the person have an
opportunity to be heard because of the potential
outcome - a non-binding outcome.
The second point I would make, in answer to

Your Honour is this, that the rules of procedural
fairness may require that such a person be allowed
to adduce evidence but, in our respectful
submission, a material difference is that the
inquirer could say to such a person, we would

submit legitimately, "I know you are most anxious
to tell me that, but bearing in mind my function I

do not propose to hear it. It may be relevant to
understanding your whole position, but my function
is to do so and so, and for that reason it is not
relevant, or necessary, for me to hear you." In our submission, that is rather different, again,
from the position of a party seeking to call
evidence who, within reason, is usually someone who
is the one entitled to identify the issues, and
say, "Here are the issues I am fighting over, and
here are the witnesses I want to call."
So, not only is such a person, in our submission, a party fn a loose sense, the person
has the right to adduce evidence not which is

Canellis(2)

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relevant to the issues that person sees as
material, but which is relevant to the issues which
the inquirer is directed to inquire into, and so it
is a more limited right. However, it could be said
to me, "Well, within all those confines, why not
the right to representation at public expense?"
And then we would say, "Well, when you analyse it
the law does weigh a number of factors of the type
we have pointed to, and that in the end the proper
conclusion is that the interests which are
entrained or involved here are not sufficient to
lead to the conclusion that that particular right
should be given.", treating it as exceptional - - -

McHUGH J: But, if they were just mere witnesses, in effect,

then it would be hard to see what rights of natural
justice they would have before there was a
possibility of adverse action concerning them was
taken, but 474G(4) seems to give them almost a
platform to launch them into the area of natural
justice, quite apart from the rights which the
section gives them.

MR DOYLE: Well, it does in a sense, Your Honour, although

from another point of view it could be said, "What
really does it add, to any event, to common law

rights?" It certainly takes it out of the realm of
discretion for the Commissioner, but one would,
with respect, think as a matter of ordinary common
law principle that if, at the inquiry, a serious
allegation were being made against them then absent
that provision they would have the right to come
along, and seek to be heard, and to put
submissions, and lead evidence. Again, as long as
it was evidence material not to their anxiety to
rebut the allegation, which may be on a very broad
front, but material to the duty of the inquirer the
matter on which he was reporting, and so that is my
answer to the point Your Honour makes.

MCHUGH J: Yes.
MR DOYLE:	The other thing just apropos of that:

Your Honour the Chief Justice this morning, in the context of that matter, raised the question of inequality. Again, in our respectful submission,
while it can obviously be said there is a
difference between inherent inequality and
inequality as the result of something the executive
does, we would submit that also cannot be taken too
far because it could be said that the mere
appointing of the inquirer in a sense created
inequality because the persons in the positions of
the respondent could say, "Well, just a moment.

Mr Kalajzich;has been convicted by a jury. You are
now setting up an inquiry to consider whether that
conviction may be unsound in the course of which

Canellis(2)

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apparently he's going to be given the chance to
suggest we really did it".
One could say on that principle that even that

was unfair and that the mere pointing of the
inquiry produced something that was not inherent
inequality but which gave Mr Kalajzich a forum in
which to make the allegations and an inquirer at
government expense who would see whether there was

substance in them. So we submit that there is a
limit to the extent to which that can be given
weight.
We submit it is also relevant to that to

consider that the purpose of this inquiry is not in
fact to assist Mr Kalajzich; it is to assist the
executive to determine whether the prerogative of
mercy should be exercised. It migr~~- be one thing
if one could say in that context of inequality that
the purpose of this was to help Mr Kalajzich. In
our submission, the purpose is actually to assist
the inquirer in his function of assisting the
executive. This is not something which is done to
assist Mr Kalajzich.
The other point that can perhaps be made is that there are obviously limits to the extent to
which inequality can be redressed. So, for all
those reasons, we do submit that one has to be
careful in the way in which one uses notions of
inequality and unfairness to drive one to a

particular result. We submit that the manner in
which we analyse the matter is the way in which it
has been analysed and that that leads to the
conclusion that in this case a different result
from that which obtained below is the appropriate
one. If the Court pleases.

MASON CJ: Thank you, Mr Solicitor. Mr Solicitor for

Queensland.

MR KEANE:

Your Honours have, I think, our written

submissions.

MASON CJ:	We have.
MR KEANE:	Your Honours, in addition to what we have said

there, we adopt what has been said on behalf of the

appellant and the others who have intervened. May
we seek to summarize our position in four
sentences.
The case is one, Your Honours, where the

legislature has provided that in an inquiry into a
possible failure of the administration of criminal
justice a witness of· a particular description is to
be permitted an opportunity to be heard in his own

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interest. Whether the witness is in a position by
reason of his circumstances to avail himself fully
or at all of the benefit of that opportunity is not
integral to the inquiry which the executive and
legislature have ordained.
The last thing we would say is that the

Commissioner appointed to inquire and report would
not be entitled to decline to perform his duty to
inquire and report on the ground that a witness was
not able to avail himself fully or at all of the

opportunity to be heard for any reason. It would
be an abnegation of his duty, a fortiori, he could
not be obliged to do so in conformity with the

order which is the subject of the appeal. If the
Court pleases.

MASON CJ:

Thank you.

Mr Solicitor for Victoria.

MR GRAHAM:

May it please the Court, we adopt the

submissions given to the Court on behalf of the
appellant and the other interveners. We do not
seek to take the Court through our written
submission which we would ask the Court to peruse.
Our intervention is prompted largely by reason

of certain observations made by Your Honour the
Chief Justice and Your Honour Justice McHugh in

Dietrich, 177 CLR 312. I can just read a sentence

from that page. Your Honours said:
In these circumstances, we should proceed on
the footing that, if a trial judge were to
grant an adjournment to an unrepresented
accused on the ground that the accused's trial
is likely to be unfair without representation,
that approach is not likely to impose a
substantial financial burden on government and
it may require no more than a re-ordering of
the priorities according to which legal aid
funds are presently allocated.

We would simply wish to make these few points in response to that observation in so far as it may

be seen to be relevant in the present context. We
would submit that it is difficult, if not
impossible, to predict what the financial effect of
a decision upon governments and legal aid bodies
will be in this case if that decision is in
favour -

McHUGH J: Well I think the assumption was that, for the

most part, people who needed legal aid would get
legal aid and therefore, the cases where they had
not been given legal aid would be fairly rare.

Canellis(2)	57	4/5/94
MR GRAHAM:	Yes.	Your Honour, perhaps I can respond to that

and amplify it a little. Since Dietrich a section
has been inserted in the Victorian Crimes Act which
is designed at least to meet the problem that
Dietrich exposed in a practical way -

MASON CJ:	In what way? How does it meet it?
MR GRAHAM:	The terms of it, Your Honour, are set out at

page 5 of our outline. Whether it fully meets it
may be a matter of debate but it provides firstly
that in the case of a trial on indictment the fact that a person has been refused legal assistance in
respect of the trial is not a ground for an
adjournment or stay but more importantly, provision
is made for the court to order the Legal Aid
Commission of Victoria to provide legal assistance
if the court is satisfied that it would be unable
to ensure that the accused will receive a fair
trial unless the accused is legally represented in
the trial and the accused is in need of legal
assistance because he or she is unable to afford
the full cost of obtaining, from a private
practitioner, legal representation in the trial.
That came into force in June of last year and

has attracted only 12 applications since it was
promulgated. What its future will be, of course,
is merely a matter of speculation. The fact that
only 12 orders have been made under that section
perhaps is reflective of the fact that the Legal
Aid Commission is performing its function
satisfactorily in granting legal aid in most cases
in which legal aid should properly be granted and
is required.

DAWSON J:

Have any applications been refused?

MR GRAHAM:

The answer is yes and no.

There is one very

strange case going through the process where legal
aid has been refused because it was previously

granted, and then the man pleaded guilty and

decided he would like to change his plea. So there
is no pattern that has emerged.

MASON CJ:

How does that bear on the comment made in the

joint judgment?

MR GRAHAM:

It does not, Your Honour.

I was really

responding further to Justice McHugh's question.
The point that we would seek to make is simply
this: that it would not be correct for the Court
to conclude in this case that it is unlikely that a
decision in favour of the respondents would not
impose a substantial financial burden upon

governments or legal ·aid bodies. The material
indicates that there are, as the Court would

Canellis(2)

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expect, enormous demands upon the resources of
legal aid bodies in Victoria and, of course, it is
likely to be the case elsewhere. Many applications
for legal aid have to be refused, and if one was to
introduce a further category of entitlement to
legal aid in the case of royal commissions, boards
of inquiry and, of course, coronial inquests as
well, the open-endedness of the commitment would be
enlarged to some degree, but one cannot predict to
what extent. So it is that that leads us to refer
to Trigwell's case as others have, to indicate that
this is a matter more appropriate to be dealt with
by the legislature rather than by the exercise of
the judicial power.

MASON CJ: Certainly you have demonstrated that the purpose

of the interventions will disable Justice McHugh
and myself from making the comment that we made in
Dietrich's case.

MR GRAHAM:

Your Honour, at least we have tried.

If the

Court pleases.

MASON CJ:

Mr Solicitor for the Commonwealth.

MR GRIFFITH: If the Court pleases, this is the first

occasion I have appeared with all my learned friend
Solicitors from the various States in the same
interest.

MASON CJ: Yes, it is quite remarkable.

MR GRIFFITH:

It suggests, Your Honour, that there must be

both principle and money involved in this
intervention.

MASON CJ: Certainly the latter.

MR GRIFFITH:

Your Honour, in that unusual circumstance it

is also the case that we are in accord with our
submissions, Your Honour. If I may hand to the

Court our written submissions, which the Court does
not yet have.

MASON CJ: Thank you.

MR GRIFFITH:

Which, if the Court pleases, seek to make two

general propositions. The first, in paragraphs 1
to 4, is to associate very much with the
submissions already made, to the effect that the
purpose of a statutory inquiry should not be
frustrated by an inappropriate implication of
procedural fairness. But, Your Honours, these
matters are sufficiently covered by, if I refer no
more than to my learned friend Mr Doyle's
submissions, oral artd written. And if I could also
refer Your Honour to the remarks of Justice Brennan

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in Builders' Registration Board of
Queensland v Rauber,(1983) 57 ALJR 376, at 385 which we refer to in paragraph 3, I will not read those remarks to Your Honour.
Your Honour, we do say that Aronson and

Franklin, in Review of Administrative Action, 1987, referred to in paragraph 4 of our submissions, at page 165, 166 are correct to observe that the
common law principles of natural justice cannot, of
course, single-handedly solve the problems of the
impecunious and the disadvantaged. As one of the
other counsel who, with Mr Doyle, appeared to
intervene in Dietrich, Your Honour, we are indebted
to my learned friend, the Solicitor-General for
Victoria, producing some financial and statutory
material with respect to the legal aid position in
Victoria.
The point made in our submissions 5 and 6,

Your Honour, really reflect, as we see it, the point sought to be made by my learned friend,

Mr Graham, and also by others of the interveners,
and indeed they do reflect the sort of approach
that Your Honour the Chief Justice referred to in

Trigwell, (1979) 142 CLR 617, at 633 to 634. We
would add, as a reference in support of the
propositions which we make in paragraphs 5 and 6,
Your Honour Mr Justice Brennan's dissenting remarks
in Dietrich, (1992) 177 CLR, particularly at
page 319 to page 325, although, of course,
Your Honour Justice Brennan's propositions in that
case dealing with the position in Dietrich did not
carry with it the majority of the court.
We do submit to the Court that in a situation

of statutory inquiry, as is the occasion here,
Your Honour's remarks do contain, we submit,
coercive force inclining to the propositions which
we do make in paragraphs 5 and very shortly of
course in paragraph 6 of our submissions. So for

that reason, it is the Attorney-General of the
Commonwealth's submission to the Court that there should be no occasion for the Court to make any
orders with respect to issues of procedural
fairness arising from this statutory inquiry.

McHUGH J: But, Mr Solicitor, your submissions accept that

statutory inquiry. That being so, why cannot a the rules of natural justice may apply to a
court, in an appropriate case, stay the exercise of
the power if there will be a breach of the rules of
natural justice?

MR GRIFFITH:

Your Honour, our intervention here is on the

issue of enforcement· of entitlement to have
representation, and we are confined to that issue.

Canellis(2)

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If there were different circumstances, such as the
refusal of an opportunity, Your Honour, to comment
as to proposed adverse conclusions, in our
submission, that could well be a different matter.

McHUGH J:

My remarks are really directed at the last

sentence in paragraph 5 of your submissions.

MR GRIFFITH:	Your Honour, the last sentence deals with the issue of expenditure of public moneys, and that is reference to the issue of providing counsel. It is not sought to include within its ambit all issues
of appropriate procedural fairness, even in a
statutory inquiry, and we would admit, Your Honour,
that there are aspects of obvious fairness and we mentioned the example of an opportunity to comment before adverse findings are made.

We would suppose, from the material we have

read, Your Honour, of course Mr Slattery will give

such an opportunity to these witnesses. They are
entitled to make representations and to be admitted
to the procedures, but we say they are not entitled
to have government moneys ordered to be expended
for that representation. And that is the issue on
which we intervene. So procedural fairness is not
excluded; it just does not have as its content, in
our submission, the right of counsel at State
expense, and circumstances, we say, Your Honour,
for the reasons to which the Court has been taken
by all counsel making submissions to date, are
entirely different from the Dietrich situation.

MASON CJ: Take a case, for example, where legislation has

set up a tribunal to determine whether or not contractors should be disqualified from being eligible to contract with government and, amongst
other considerations, one had regard to the
reputation, capacity for performance contractors;
would you say, in such a case, that the courts
could not make an order staying proceedings unless

costs were provided?

MR GRIFFITH:	"Costs", you mean counsel, Your Honour?
MASON CJ: Yes.
MR GRIFFITH:	Your Honour, we would say, in that situation,

what the court could or could not do would depend

upon the construction of the statute. Now,
ordinarily one would expect, Your Honour, that
there would be a right to procedural fairness, but
our submission would be it would certainly not
include with it the possibility that the court

could order legal assistance. The contractors are
entitled to representation but not entitled to
representation paid by the State.

Canellis(2)

4/5/94

McHUGH J: But there may be other areas where a court could

stay proceedings unless public moneys were
expended. Supposing it was a case which involved
very complex and sophisticated scientific evidence,
for example, and a person's reputation was likely
to be impugned, even during the running of the
case, why could not a court stay the proceedings
unless that person was given the means to protect
him or herself in that situation?

MR GRIFFITH:

Your Honour, perhaps there is a circle here.

It is a question of when one has a statutory
tribunal set up to discharge a certain statutory
purpose. One can carry with that, as is referred
to by Justice Brennan in Builders Registration
Board of Queensland v Rauber, which I referred to
Your Honour, the implication that to the extent to
which otherwise rules of procedural fairness would
apply, they are, to that extent, by necessary

implication excluded. So that is the first
inquiry, Your Honour.

When one is engaged in that inquiry,

Your Honour, and has determined, as perhaps
Your Honour's question to me assumes, that there is
scope for aspects of regard to principles of
procedural fairness, it is, in our submission,
Your Honour, still a matter of particular inquiry
in the circumstances in the statutory scheme to
determine what is the relevant content of
procedural fairness. That may vary from

circumstance to circumstance. We say, in our
submission, Your Honour, in respect of a statutory
inquiry, the Court should be slow to infer a
requirement of statutory procedural fairness which could frustrate the purpose of the inquiry itself.

MASON CJ: But the last sentence is more strongly expressed

than that because it is asserted that it is
inconsistent with a judicial function.

MR GRIFFITH:

the circumstances of construction such as Your Honour, it is intended to convey that in
His Honour Justice Brennan referred to in Rauber, where one sees a statutory purpose that a statutory scheme should be validly implemented and carried
into final effect, the submission is intended to
convey the submission to the Court that in those
circumstances the Court should not apply issues
related to issues of procedural fairness or other
common law implications, if one likes, which have
the effect of frustrating that discharge. So that,
Your Honour, if that sentence goes further than
that and gives unintended judicial offence, I could
indicate that that is not intended.

Canellis(2)

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MASON CJ:

It is not a question of offence, it is merely a

question of whether it is correct or not.

MR GRIFFITH:

Your Honour, it is submitted that in that

aspect, it is correct if one has an issue of
whether or not the statute is to be frustrated by
reference to a court order which does necessarily
require expenditure of public moneys. Those
matters are touched upon of course in the
discussion by Your Honour Justice Brennan in
Dietrich, and we adopt what His Honour said and by
implication, although the rule of Searle v Wallbank
is perhaps not quite directly relevant, by what
Your Honour said in Trigwell. If the Court
pleases.

MASON CJ: Thank you, Mr Solicitor. Mr Jackson.

MR JACKSON:

Your Honours, as the Court is aware, our

contention is that the case in reality turns on
narrow and particular circumstances. It has some
potential flow-on effect, as these cases always do, but not in reality, in our submission, much. May I
start in that regard from the form of the
proceedings including the in fact quite limited

order that was made. The proceedings before the
primary judge, as has already been observed, were
for a stay which was effectively an injunction.
Perhaps the word "stay" is one taken, I suppose,
from Dietrich, but in reality the claim, one would think, was a claim in the nature of an injunction. But it was also a claim for further or other
relief, as Your Honours will see from pages 1 and 2
of the summons. A claim for further or other
relief appears in that form on page 2.
Your Honours, the primary judge refused to

make an order of that kind but he also granted no
other relief, as Your Honours will see from his
order at page 192, with the reasoning being at
page 188. If I could go there for just one moment,

Your Honours will see at page 188 commencing about line 3 and going through to the bottom of the page
and perhaps just the top of the next page that
His Honour refers to the fact that a stay of
proceedings was discretionary and then he went on
to balance the competing interests, as Your Honours
will see, through the remainder of page 188.
In relation to that, that is the discretionary

element of his decision to grant or not to grant

the stay. On the hearing of the appeal, the Court
of Appeal both agreed and disagreed with some of
the approach taken by the primary judge. It agreed
with him in the sense that it did not regard the
case for a stay as made out but it disagreed with
him in a number of other respects - two, I think.

Canellis(2)

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The first was that it thought that the requirements
of natural justice or procedural fairness had not
been satisfied, but the court also thought that
appropriate relief could be granted, the relief
being the declaration.
In that regard, may I take Your Honours to

page 211. What Your Honours will see in the second paragraph on the page is a discussion of the issues
that were involved in the proceedings and then the things that was said was that:
If error be shown ••.•. a auestion arises as to
the reJief, if any, avaiiable in this Court.
Your Honours, could I come then to the

declaration that was actually made, and to its
operation. It appears at page 264, and what
Your Honours will see is that in proceedings - it
is in paragraph 1 at the bottom of the page - in
which the State of New South Wales was a party the
declaration that was made was that:
The continuation of the hearings .....

would ..... constitute a breach of the legal
requirements of procedural fairness.

Nothing else, Your Honours, that was the
declaration and that, and nothing more, was the
declaration.
May I say three things about it: the first

relates to the jurisdiction to make an order of

that kind. We would submit it is clear that the
court had jurisdiction to grant a declaration even
if no other relief could have been granted. That
that is so appears, in our submission, from the
terms of the provision referred to in paragraph 10
of our written submissions, section 75 of the
Supreme Court Act 1970 which, and we have simply
quoted its terms, it provides that the court has

jurisdiction to grant a declaration, whether or not
other relief could have been granted.
It is clear, in our submission, that whether

the supreme court had jurisdiction to grant a stay or to grant an injunction in the circumstances, it
was empowered to grant the declaration.

McHUGH J: But, it is a very curious declaration, is it not?

I must say I have real trouble in understanding
what it means, and even more difficulty in
understanding how it could be enforced.

MR JACKSON: Could I come to that in just a moment,

Your Honour? That is the second or the third thing

Canellis(2)

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I am going to deal with. I was just dealing with
the first thing, the jurisdiction to do it,
independently of the ability to grant other relief.
The second thing, still on a question slightly more
abstract than the one Your Honour put to me, as to
the appropriateness of the exercise of power to
make a declaration in this area of the law, that
is, in cases where there is a breach of natural
justice - procedural fairness. That it is
appropriate to do so in, of course, an appropriate
case, may be seen in the Court's decision in
Ainsworth v Criminal Justice Commission,
175 CLR 564, and I wanted to refer Your Honours to
pages 581 and 582. Your Honours, that of course is
a reputation case. It is, in a sense, the leading
reputation case but, Your Honours will see at page
581 that a question arose, in the first new

paragraph on the page, about the form of relief. I
will not go through that paragraph, but may I take
Your Honours to the last paragraph on page 581
where there was a reference to the:
inherent power to grant declaratory relief.

Then there is the familiar passage from Forster v
Jododex Australia quoted, and Your Honours will see
the criteria quoted again in the remainder of that

paragraph at the top of page 582. Then there is
the application of those criteria to the particular case, a case of the broad class of which this forms
part.
Your Honours will see in the first new

paragraph on page 582 the reference to the
satisfaction of the various tests but, in
particular, the last two sentences - the last three
lines - of that paragraph:

It is appropriate that a declaration be made
in terms indicating that the appellants were
denied natural justice. That may redress some

of the harm done.

Your Honours, I pause at that point to say about those observations in the joint judgment of
members of the Court that they demonstrate, in our
submission, that it will be appropriate in some
cases for the relief to be a declaration that the
principles have not been followed or perhaps no
doubt conditionally might not be followed in the
particular case.
May I come then to the third feature which

concerns the efficacy of the grant of a declaration

in this case. I will need to develop this at a
little greater length if I may and slightly by

reference to the facts. But what we would submit,

Canellis(2)

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broadly speaking, is that the granting of the
declaration serves the real practical purpose that
if, not withstanding the making of the declaration,
no funds were provided and there were then findings
and recommendations made by Mr Slattery in
conducting the inquiry which reflected adversely
upon Canellis, for example, he is able to say that
they were made in circumstances where he had not

been afforded natural justice or procedural fairness in relation to their making.
So he is in a position of being able to say if

nothing more happens, no injunction or stay is granted, and the proceeding goes ahead and the
report is made, he is able to say in relation to it,
that it was made in breach of the requirements.

McHUGH J: But how does one judge what is proper in legal

representation? Does one look at it objectively or
is it just the handing over of money to pay fees.
Is that a sufficient discharge of the obligation,
or does one evaluate the conduct of counsel who
represented the - - -?

MR JACKSON:

Your Honour, may I just go back one stage in

answering that, and perhaps in answering that, one
sees the reasons why the Court of Appeal's

reasoning is expressed in a particular way. The
Court of Appeal obviously took the view - and I seek to develop this in a moment - that for our
client's to be provided with nothing in the
particular circumstance, the critical feature of
which was, in effect, giving the bag of money to
the accused and giving nothing - giving the bone to
the other side, the accused, in the particular
circumstances where nothing was provided, then
there would be no legal representation emerge.
That, in the particular circumstances, was

thought to be the breach of the requirements of
procedural fairness. Your Honours, if I could just
pause at that point to say this: the precise
application of that to the particular case, as is

apparent from what is said by, for example,
Mr Justice Kirby, was one that did not necessarily
involve, for example, two or three counsel of great
eminence turning out with a number of instructing
solicitors, research assistants, like for like,
however one chooses to put it, but it depended on
an analysis of particular events. But nothing was
provided so that is why the court was saying to see
what needed to be provided, the best person who
could judge that was the person who was conducting
the inquiry.
Your Honours, that is why one sees the declaration expressed ·in the form in which it is

Canellis(2)

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accompanied by the observations to the effect that
the best person to judge is the person conducting

the inquiry. And of course, Your Honours, that has
happened and there has been an analysis of it, to
be carried out by Mr Slattery and he has indicated
what he thinks is appropriate which certainly is

not the Rolls Royce. Your Honour, I will come back

to that part shortly, a little later if I may. But
that is essentially the point we would seek to
make.

Your Honours, could I go then for just a moment to the basic facts.

Your Honours have had

some of them. The passage in which they are to be
seen is best seen at page 213 line 6 through to
page 217 line 14. The reference is given in

paragraph 1 of our written submissions. May I
indicate a couple of things in the course of those
passages.
At page 215 in the passage from lines 6 to 20, what one sees is that whatever might have been this
respondent's participation in the early events, he
was a person who contacted the police. He then
played a part in actually obtaining evidence by
himself being wired up with a listening device and
speaking to two of the persons involved, and as a
result of that he was given an immunity from
prosecution as Your Honours will see at lines 18
and 19. So his participation was something that
resulted in him obtaining an immunity from

prosecution which may go, of course. If one then
goes to page 216 in the passage which commences at
about line 18, the President says:
But it is enough to indicate the broad basis· upon which the Crown's indictment against
Mr Kalajzich was presented, and the vital
importance to the Crown's case of the evidence
of Messrs Canellis and Elkins.

Your Honours, that is developed through that
paragraph, together with the reference to the
possible loss of the immunities.
The facts to which I have referred in those

passages demonstrate, in our submission, the
matters to which we have referred in paragraphs 1
and 3 of our written submissions, and in particular
paragraph 3 develops the more particular
and also the possibility of charges of perjury as well. The matters to which I have so far referred
proposition in paragraph 1 that central issues in
the inquiry involve the obverse of the guilt of
demonstrate also, in·our submission, an· underlying
important fact related to the flow-on argument

Canellis(2)

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suggested by our learned friends and the pie charts
and so on.
In relation to that may we say that this is

not in truth one of the ordinary run of cases where
provisions of this kind are activated. Certainly,
there will from time to time be cases where the
contention is not just that the person who was
convicted was not guilty, but that some other

person was. As Your Honours will see in
paragraph 2 of our written submission, most often
one would expect cases of this kind to be cases not
where the contention is (a) did not do it because
(b) did, but rather that there should be a
reasonable doubt about (a) because of factors of
the kind to which we have referred in paragraph 2.

McHUGH J:

I am not sure that this sort of case is not more

frequent than you seem to be suggesting. Coles
case is a recent inquiry, and that was the one
where where somebody else can - - -

MR JACKSON:

Your Honour, can I just say, one tends to bring

about another, and I do not mean this in a
facetious way at all, but there tend to be
particular types of them that are taken up
popularly, or because sometimes there is not a lot
else to do, in the case of people who have been
convicted. They can be of various types, but very
often they tend to be cases, again frequently, of a
husband and wife kind, where the wife or husband is
killed, more often the wife, of course, I think,
and the husband is the person who is accused, on
evidence which is largely circumstantial, and it is
not possible to identify who the other killer might
have been: burglar, someone of that kind, drug
addict looking for drugs, something like that.
Your Honour, that tends to be the - perhaps
difficult to do it quantitatively, but that is a
very common class of case, without being able to
say that the alleged person was a particular

identified person.
Perhaps we have overstated the position but,

broadly speaking, this is a class of case, it does
not exhaust the class, if I can put it that way.

So, Your Honour, summarizing that, in a sense, may I say it is obvious - obvious now, if I can put it
that way first - that the whole thrust of the
inquiry is that Kalajzich was framed and that we
were involved in it, and that we were more involved
than that, indeed.
Now, the inquiry in question was one which was

established by the appellant. That that is so is
obvious from the terms of the statute.
Your Honours will see the document recommending it

Canellis(2)

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at page 83. Now, Your Honours, if one goes then to
the inquiry itself, the inquiry is being carried out by the Crown. It is being carried out by the appellant, by the use, of course, of an independent
person. But the fact that the inquiry is being
carried out by a person who is independent, a
person of the highest probity, does not mean that
its character is other than that of action being

taken by the Crown. Your Honours, could I just say
one thing in passing - - -

BRENNAN J: That is not quite accurate, is it, in the sense

of the Crown exercising some prerogative power? It
is a case of a prescribed person undertaking a
statutory function.

MR JACKSON:

Your Honour, I accept that. What I am seeking

to say about it though is that what remains, of
course, is the prerogative of mercy and
Your Honours will see the provision in the Act that
says the prerogative is not affected by the
procedure. What has happened has been that, as
frequently happens, where there is a prerogative
power or perhaps a power under a statute to be
exercised, provision is made for there to be an
.inquiry conducted as an inquiry by - I was going to
say "by the executive". What I mean to convey by
that is this, that it is not an inquiry exercising,
in our ~ubmission, judicial power in the strict

sense of that term. I want to say something about
that if I may, because the cases make an
observation about that which is not really correct
by more modern thinking, in our submission.

BRENNAN J:

It is the statutory power, the exercise of which

is directed to advice to the executive.

MR JACKSON: Quite, Your Honour, yes.

BRENNAN J:

Is that all that one needs to say about it or is

there some other aspect?

MR JACKSON: There is another aspect about it, Your Honour,

and I am going to come to that in a moment. What I
was going to say about it is this, that it is an
inquiry established by the Crown for the purpose of
reporting to the Crown and then also provision has
to be made for it to operate and the operation of
it is something that involves activities by the
Crown.
May I come back to that because I just want to

say something about the nature of the activity

carried on, and it was this. In Varley v Attorney-
General for New South Wales, (1987) 8 NSWLR 30, at
page 43C, Mr Justice Hope referred to the fact that
in White v R, 4 CLR, the proceedings were described

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as judicial proceedings. That is true in part but
the terminology "judicial proceedings" was being
used not really for the purpose of determining
whether they were judicial or administrative but
really for the purpose of determining whether they
were proceedings in the course of justice for the
purpose of being susceptible of supporting a charge
of attempting to pervert the course of justice.
Your Honours, I do not. need to dwell on the point. Could I just give Your Honours the

reference to the pages in White v R: 4 CLR 152, at

pages 159 to 160, 163 and 165 to 166. No doubt it
is true that in the sense of acting fairly, hearing
evidence and so on, that the person conducting the
inquiry has to act in a judicial manner but, in
truth, the present inquiry, in our submission, is
administrative in its ultimate nature; Mr Slattery
acting to report to the Crown.
Your Honours, could I move back to the terms

of the enactments then. The Acts provide no
detailed guidance as to the conduct of the inquiry
except in a number of respects, one of which is
that the inquiry must be conducted by examination
of witnesses and attendance for the purpose of
examination may be enforced. Secondly, persons
whose character is in question have an ability to
be present and to examine witnesses.

McHUGH J: Could I just stop you on that. If 474G(4) was

not in the statute, I have difficulty, Mr Jackson,
in seeing how the rules of natural justice could
apply except in a Mahon situation. Would you
dispute that?

MR JACKSON: Yes, Your Honour, I would. Could I just say

this in relation to it. Certainly they would be
the minimum requirements, in our submission.

McHUGH J:

I am just assuming that you have got a statute

which authorizes an inquiry and people can be just
called as witnesses.

MR JACKSON:	Your Honour, it just depends a little, for a number of reasons. But let us assume that an
inquiry set up pursuant to one of the two sections not containing the provision to which Your Honour
was referring and that it is not obligatory for any
person to attend it except for the purpose of
giving evidence. One would then need to bear that
in mind. If that is so, Your Honour, and that
person attended, did no more than that, then one can see that in those circumstances it would be
reasonable enough to say that the only requirement
that then might arise would be the ..... Mahon

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requirement of giving notice of findings that might
be made.
Why I am endeavouring to give an answer that

is a little longer than might be is this, that that
is not the only possible way in which it might

occur. One situation might be that persons whose
conduct was to be called in question might
themselves seek leave to appear at the inquiry and
to be represented throughout the inquiry. Leaving
aside questions of legitimate expectation if
indications were given that this might happen or
that might happen, if a situation were to arise
where they had been given leave to appear and if,
for example, a witness were to give evidence
against that person and if permission to
cross-examine, for example, was not given, in those
circumstances we would submit that would be a
breach of the requirements of procedural fairness.
Your Honour, one has to bear in mind - and I

will give Your Honours the reference in just a
moment to what has been said on many occasions of
course that practical requirements vary depending
on the circumstances but, as Justice Stephen said
in Salemi v MacKellar (No 2), the practical
application can vary from case to case, even though
in effect the same jurisdiction, even in the most
limited sense, is being exercised. I do not know
that I can take it past that.
Now, Your Honours, the point I was seeking to

make first was this, that the Acts do not provide
any detailed guidance about the conduct of the
inquiry except in the matters to which I referred.
What I was going to go on to say from that,
Your Honours, was that the terms of the Acts do not
deal at all with such matters as, for example, how
the person conducting the inquiry is to be
remunerated. That is not dealt there at all, so
there must be money provided from somewhere, in the

usual case where the person conducting it is not
already in the employ of government or holding some
office.
Your Honours also, for example, the Act makes no provision in relation to the facilities that lie
at the core of resolution of things like this. For
example, where is the person conducting the inquiry
to sit? Is there to be a courtroom available? Is
that person to be exiled to the sticks, as it were,
to conduct the inquiry in an unused courtroom miles
from where the potential witnesses might be, or
some other place in the city? Nor is anything said
about the staff who _are to be provided, the legal
assistance, the funding for investigation; none of
those things is dealt with by the Act.

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something in response to an observation made by Your Honours, also, if I could just say
Your Honour Justice Dawson this morning, there is
also nothing said about whether there is to be, for
example, counsel or solicitor assisting the
inquiry, nor about what the functions of that
person might be. Now, it is a common thing, of
course, to have someone, some legally qualified
person assisting the inquiry, and it will often be
a silk, often not. Fashions change in these

things. So there is no provision made in that
regard.
So, Your Honours, what the true situation is,

in our submission, that the terms of the Act leave
a great deal to be done in relation to the
practical operation and the affording of justice to
those involved to, on the one hand of course, the
person conducting the inquiry, but also the Crown
itself in the way it sets up, funds it, and makes
provision for it.
Now, Your Honours, we would submit that it is

clear that by its actions in relation to any of the
matters concerning the establishment or the conduct of the inquiry, the Crown could make the conduct of the inquiry inefficacious or, to put it at a lower
level, unfair. Your Honours, it could do so by not
providing some or all of the necessary facilities.
Your Honours, to take a particular example, it
could make the conduct of it unfair by not
providing facilities to allow any investigation of
a particular relevant theory which was advanced by,
for example, a witness whose conduct was in
question, by making no funds available to pursue
that, to counsel assisting for example.

McHUGH J:

You are using terms like "conduct of it unfair",

but that is not the sense in which the term
"natural justice" is used. It is fairness in
relation to some interest, right interest or

legitimate expectation. It must be directed to
that.

MR JACKSON:

Your Honour, I accept that, but it is a

question then, of course, of what is contemplated
by that and may I come to that in just a moment

because I intend to. I just want to say two more
things. The first thing is that in an inquiry
being conducted by the Crown it is really in the
Crown's hands to make aspects of it unfair in the
accepted legally traditional sense if it so
chooses. So much depends on the particular case.
But in this case, what has to be borne in mind is
that the nature of the allegations to be made
against us was something that was known at the time
of the establishment of the inquiry. That that is

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so appears, if I could give Your Honours a
reference, at page 227 line 13 through to page 228
line 9, and commencing at line 13 there are
references to the submissions presented in support

of the petition for the inquiry. Some general
observations are made in that paragraph, and then
the detail is made in the next paragraph going over
to the next page of the submissions made to the
Governor which made it clear that one of the
purposes for which the inquiry was set up was to
investigate those allegations.
Knowing that, and knowing that the purpose of

doing so was to enable the making of allegations of
that kind against us, the Crown made available
massive funding to Mr Kalajzich. That that is so
appears, and I give Your Honours three references,
in the reasons for judgment of Mr Justice Kirby:
first at page 222 lines 1 to 24, but in particular
lines 13 to 20. This is provided by the State;
one trusts there will ultimately be some
parliamentary sanction for it, so Your Honours will
see to the tune of something more than half a
million dollars. Then at page 223, one looks at
the context in which this was to occur, through to

page 224 line 21. My learned friend mentioned that
hard copies of the transcript were made available. Perhaps that is right. It does not seem to accord
terribly well with what is said in the passage to
which I just referred, but it does not really
matter very much in the end; finally, at page 225
lines 5 to 10.
All that occurs in a context, reverting to

something Your Honour Justice McHugh put to me,
where there is a statutory recognition in
section 475(2) and also in the equivalent provision
in the later Act, of the right to examine witnesses
and be present when character is involved.

BRENNAN J:

Mr Jackson, would the problem be solved if legal aid was withdraw from Mr Kalajzich?

MR JACKSON:

Yes.

BRENNAN J: It would?

MR JACKSON:

Yes.

BRENNAN J: So that your argument really comes down to:

what is good for the goose is good for the gander?

MR JACKSON:

Yes, in the words of Your Honour, yes.

But the

case comes down to two things, really. One is,
that if we both got ·nothing then we would not have

much cause for complaint. The second point about

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it is, really, is it possible to see that there is
procedural unfairness caused not by the personal activities of the person conducting the inquiry?

BRENNAN J: Well, if it is a question of those with rival

views of the facts, one of whom is serving a
sentence for murder, and the other of whom is
alleged to be the true culprit, and the inquiry is
of the kind that you have indicated, is it to be
inferred from the statute that in that situation
there is to be even-handedness in relation to the
distribution of funds for representation?

MR JACKSON: Well, in our submission, yes, Your Honour.

BRENNAN J: That rather means the interests of both must be

regarded as, if not co-equal, at least comparable?

MR JACKSON:

Yes, Your Honour.

My hesitation is perhaps

directed to the choice of words rather than the
underlying concept. What I would seek to say in
relation to that is this, that - perhaps this goes
back to what Justice McHugh was saying a moment
ago - whatever might be the situation absent the
provision that says that a person whose character
is the subject of challenge, as it were, has the
right to be present and to examine witnesses,
whatever might be the position if that were not
there, what that does do is to give a statutory
interest to that person. It is possible to regard
it as the tip, in effect, below which is the
iceberg, or it may be that it is just a reflection
of the whole thing. But, it is clear that there is
a statutory interest given.
One obtains a statutory interest in a number

of ways, for example, rights to object to mining
leases, for example, Sinclair v the Mining Warden
at Maryborough, cases of that kind, are ones where
an entitlement arises because of the statutory
right. In a case like this, looking at it from the
point of view of a person whose character is in

question, it is clear, the statute says you have a
right to be there, and presumably, we would submit,
the right is to be taken as one that is capable of
exercise.
If I could say just one other thing: looking

at the situation from the point of view of the
other person - the person making the challenge, as
it were, Kalajzich - the situation that obtains in
relation to him is that, of course, he has, the
decision having been made by the Governor in
Council, as anyone else, a right to have the
inquiry carried out.

Canellis(2)

4/5/94

So, Your Honour, my hesitation before is

perhaps the description of the most co-equal or

comparable. They both exist, they are both rights
to be taken into account. And it is not really
possible to adopt the line of saying that the
inquirer has to get about his work, do it as
quickly as possible, make the report, and
Mr Kalajzich's situation depends on it; certainly

it does. But the statute does not say only his
interests are to be considered. It says
specifically the interests of people in the
position of the respondents are also to be taken
into account.

BRENNAN J: But the real problem is not so much the tip of

the iceberg but whether you are going to erect
something on top of the tip because there is no
doubt - - -

MR JACKSON: Well, perhaps, moving into warmer seas,

Your Honour.

BRENNAN J: Yes. Mr Jackson, there is no doubt that those

who are entitled to appear under 474G(4) have been
given that right. The question is whether it is a
right which carries with it the right to be
represented legally at public expense and that
really is a question of whether you build on 474G's
tip, that rather substantial edifice of legal
representation at public expense.

MR JACKSON:

In one sense, Your Honour, that is right but

could I just say that if one were looking for foundations of the notion, the place to start
really, in a sense, is in the broad thrust of cases
view has been expressed and expressed time and time
developed over 20 years, perhaps longer, commencing
perhaps relevantly in the Court with say,
again and developed in a stronger and stronger
fashion over the years that in the absence of there

being some statutory expression to the contrary,
then the principles of natural justice, now
procedural fairness, are ones that the legislature
is taken to have treated as applicable.
So whether one calls it an underlying legal theory, whether one calls it an approach to
construction or whether it has elements of both,
that is really the foundation from which one works.
Now, Your Honours, that can be, of course,
statutorily abrogated, enlarged, have parts of it
emphasized and so on.
A part that is specifically referred to and

specifically entrenched, if I could use that
expression, is the right to be present and the

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right to examine witnesses that is referred to in
section 474G(4).
Your Honours, that is really the starting

point. Now, an aspect of the concept of procedural
fairness, and one, Your Honour, that recurs and
recurs, is that the particular application of it,
in particular circumstances of particular cases,
does not really turn on some a priori notion at a

level below the broad concept. What I mean by that
is that whilst it might be convenient if one were
writing a text on the topic, to divide it up into
particular things, the Court always has expressed
the view that its application must depend on

particular circumstances. That is why,
Your Honours, if one is looking at, for example,
474G(4), in the context of there being a principle
being applicable, one has to look to see how that
principle works in particular cases.
Now, Your Honours, where I was going to go

from that was to say this, that true it is that one
can isolate the question in one way and say it is a
question whether the 474G(4) carries with it the right to public funding for legal representation
and, Your Honours, that is one way of framing it,
but, what one is really saying is whether the
inquiry can be conducted fairly in a case such as
the present where - and Your Honours I will not go
over it - a very substantial sum of money has been
provided to one side in order to pennit the making
of allegations against another, and the other given
nothing.

McHUGH J:

I have difficulty with how you marry these two

concepts together. That is my difficulty with the
Court of Appeal judgment. The principle of natural
justice operates, in effect, as a modification on
the statutory power; "You cannot exercise the power
unless". Now, what is it that the Commissioner
would be alleged to be doing during the inquiry
which requires the rules of natural justice to be

observed?

MR JACKSON:

Your Honour, that, what I said a moment ago,

was really the second aspect of it, in a sense, and
that is that - let us assume that in the
circumstance in which he is operating that he is
doing everything as fairly as could be done
objectively in the circumstances. What I mean to
convey by that is that despite the fact our people
are not there because they have no money to be
there, one still has a situation where the evidence
is called by counsel assisting; the witnesses give
their evidence; Mr Kalajzich's counsel endeavour to
get from them what they can; nothing comes from our

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side, but it is all done - it is like a case where
a party does not turn up.
Now, Your Honours, assume that all that,

within that boundary, is done fairly, that is, so
far, so good. But the question then is,
Your Honours, whether one can leave out of account
altogether the underlying circumstances in which
the things take place. Now, if one took, for
example, this: let us assume that the person
conducting such an inquiry conducts it absolutely
fairly, but the only place given to him by the
Crown setting up the inquiry in which to conduct it
is a place where it is, in fact, impractical for
persons having a serious interest in it to get to
it. Well now, Your Honour, one can say he conducts
it according to the principles of natural justice
and procedural fairness, but that does not occur in
a vacuum and one has to -

McHUGH J: No, it does not, but it may irrelevant unless you

can point to something, some interest or
expectation of your client, that is going to be
affected by it. What seems to be being said here
is that because allegations are being made against
your client during the hearing of the case that
somehow or other you have a right to be funded to
meet those allegations, even though the
Commissioner himself may say, "I don't believe a
word of what's said on behalf of the Kalajzich
petition".

MR JACKSON:

Your Honour, there is more chance of him saying

that if they are represented, I suppose.

McHUGH J: Of course there is.

MR JACKSON: There is some margin for skill. Your Honours,

what I was going to say in response to that was
this, that, in our submission, the authorities in
the court and particularly the recent authorities

recognize clearly that reputation and the fact of not having some allegation stick to someone may be
the subject of the doctrine of - - -

McHUGH.J:

That is because in a case like Ainsworth it is

the commission's report that damages the
reputation.

MR JACKSON:	Of course, yes.
McHUGH J:	But you seem to be going back in an anterior

stage.

MR JACKSON:

I am sorry, Your Honour, I am not, really. All

I am seeking to say ·is that the prospects of the
inquirer's report being adverse to us are likely to

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be increased dramatically if we do not have the
opportunity to participate in the way contemplated
at least by section 474G(4). I will come to the
cases in just a moment in relation to that and I will not take very long with them but may I just

say this. In relation to the question of
reputation, could I say two things: the first is
something I was saying a moment ago and that is
that reputation as such may be the subject-matter
of the doctrine. That that is so can be seen, for
example, if I give Your Honours two references.
The first is to Annetts v Mccann, 170 CLR 596, at
page 608, Your Honour Justice Brennan. The other
decision is Ainsworth v Criminal Justice
Commission, 175 CLR 564, in particular at pages 577

to 578 and 592. Your Honours, the references are
contained, I think, in our written submissions, at
paragraph 5.
But, Your Honours, whatever might be the

position under the general law about reputation or
character being the subject of the doctrine,
section 474G(4) makes it so because it refers
specifically to character being an issue.
Could I .just say in passing that, of course,

our client is described somewhat freely as being a
hit man but could I just say two things about that:
the first is that he did assist the police in a
significant way, which Your Honours will see at

page 215. I have gone to it. The second is that
it is possible to use descriptions about people in
ways that later might seem odd; for example, the
President of South Africa spent 27 years in prison for some rather serious offences but appears to be taking up office now.

BRENNAN J:

Mr Jackson, is it implicit in your submissions

that if the inquiry was of a different sort, for
example, as to whether a confession had in truth
been made when it had been deposed to by two police

sergeants, the police sergeants whose reputations
would be at issue would be entitled to the same
kind of benefit?

MR JACKSON: In some cases, yes, Your Honour. What I mean

by that is this, that the gravamen of our complaint
really in the present case comes down, I suppose,
not so much to the fact that allegations are made
against us simpliciter, but to the fact that in
allowing the allegations to be made in providing a
forum within which they are to be made, what has
also been done is to provide very significant
funding to allow them to be made without assisting
us in any way to resist them.

BRENNAN J: What it really comes to then in - - -

Canellis(2)	78	4/5/94
MR JACKSON:	- - - to resist them.	Your Honour, I think I

answered a question of Your Honour's a little too
globally before. Your Honour was asking me would it be the position that if one side got legal aid
and the other did not, you could not complain about
it, and I think I answered that "Yes". There are
probably other considerations because of the terms
of the legal aid statutes that might be germane,
but broadly, what Your Honour was putting to me, if
one looks at benefit to one side, benefit to the
other, is correct, yes.

BRENNAN J: What it comes to really in your submission must

be this, I take it, that in any case of an inquiry under Part 13 or whatever it is of the Crimes Act,
any person who has given incriminating evidence
against an accused at his trial when that evidence
is the subject of controversy is entitled to legal
aid representation?

MR JACKSON:

It probably goes a little far, Your Honour. Take, for example, identification evidence. Let us

say you have got some person who says, "I

identified the person.

I saw him as the person I

saw firing the gun holding up the shop".

To be in

error about that would not necessarily bear, for

example, upon the character of a person, nor would

it bear necessarily upon their reputation. It

might simply mean they are a person who was

mistaken. There are many variants of the
possibilities, but in some cases of course there

will be a simple conflict of evidence - who should

be believed. Not to be believed of course does not

mean that there is any adverse comment.

BRENNAN J: The reason for my asking you this question was

really to see whether this is such a unique case or
whether the principle is one that is of general
application to inquiries of this kind.

MR JACKSON:

If I could perhaps just go back for a moment to

what we have said in paragraph 2 of our written
submissions, if one were to take the cases we have
referred to there such as additional evidence to
support an alibi - let us assume that the defence
was an alibi case; notice had been given saying
what the alibi was to be and relying on three
witnesses, one of whom was overseas somewhere and

no one knew where they were. Two witnesses give
evidence; the witnesses obviously are not believed
by the jury; the jury find them guilty.
The third witness, having come from a year of

ashram, or wherever they go, then returns to
Australia and is able to give evidence that in fact the person was not at the scene of the crime but somewhere else; the evidence is believable.

Canellis(2)

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Your Honour, that really does not, one would think,
give rise to circumstances which could attract the
present problem. That is the first case,
Your Honours.
The second case is one we refer to there,

developments casting doubt on scientific evidence.
Now, of course the developments of scientific
evidence can produce circumstances where evidence
that was obviously believed at a trial is later
found to have been evidence that was
scientifically - is no longer thought to be good or

correct. Your Honours, it would be unlikely that
that could cast any relevant aspersion upon the
character of the person who had given it, although it might, perhaps in some circumstances I suppose,
suggest a lack of competence. But that is as far
as one could go.
Your Honours, the third example we give,

matters touching the mental stability of a Crown
witness at the trial: Your Honours, perhaps that

is a borderline case. Some cases, it may be,
depending on the other facts surrounding the
circumstances in which it had been given, give rise
to the.possibility; most cases not, we would
submit. And the circumstantial evidence cases I
was referring to earlier, such as wife found dead,
and the circumstantial evidence leading to the
husband in circumstances where some other person
is - where the circumstantial evidence is attacked
in some way, it may or may not give rise to the
possibility.
Your Honours, could I move on then to

paragraph 8 of our written submissions. What is
set out there contains something that has been said

on many occasions and in many different ways. May
I add to that, Your Honours, a reference to

Salemi v MacKellar (No 2), (1977) 137 CLR 396. I
do not think Your Honours have that reference. I

want to refer particularly to page 444, and
Your Honours, Justice Stephen at page 444, dealing
with a matter under the heading of "The variable
content of the rules of natural justice" said,
about a third of the way down the page:
But not only will their effect and application thus vary depending upon the character and
function of the particular statutory tribunal
or person in relation to whose deliberations
they are invoked, they may also vary from case
to case although each be conducted before one
and the same tribunal or person -

Your Honours, that is a passage that has been
picked up by some members of the Court in later

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cases, although I must say I have not quickly been
able to find where that is so.

McHUGH J: Similar things were said in Lisafa Holdings Pty

Ltd v Commissioner of Police.

MR JACKSON:

The point I wanted to refer to particularly

about it was that it was not just tribunal to
tribunal. It was also circumstance to circumstance
or case to case.

McHUGH J:

Tannous itself really says that.

MR JACKSON:

Yes.

Your Honours, could I say a couple of

other things. One is that some reliance is placed
upon the fact that the person conducting the
inquiry, of course, has a duty to be fair in all
the circumstances, and one could in a sense rely on
that person. Could I give Your Honours three

of Appeal dealing with that which, in our references in the reasons for judgment of the Court
submission, sufficiently establish that that point
is not correct. The first is at page 230 in the
passage commencing at the top of the page and going

to about line 23, quoting from Your Honour just referred. If I could say something about
that, it is clear, of course, that one feature
which is important in weighing the credibility to
be given to serious allegations is to examine or
cross-examine the persons who are making them.
That is an introductory passage.
The second passage is at page 240 commencing

at line 3, in a passage which goes through to

page 240, line 13. We would adopt what appears,
for example, at line 5 on page 240. Could I refer
also while at that page to what is said in the
second new paragraph on page 240 in relation to the
flow-on effect. Then to page 260 in a passage
commencing at line 9, in particular the

observations of Justice Sutherland in Powell v
Alabama, going through to the next page, page 261
at line 7.
If one has a situation where allegations of a

serious kind in a very complicated and complex
inquiry are being made, it is really impossible to
imagine that the person against whom they are made
who is an uneducated person being really in a
position to defend himself or herself
satisfactorily against that without being in a
position to be able to effectively cross-examine or
make submissions with the aid of counsel. Even the
selection of what to say and what not to say in
submissions is a matter requiring some skill. The

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4/5/94

greater the volume of the material at the inquiry,
the more difficult it becomes.

BRENNAN J:	Mr Jackson, I do not think this bears very much on your argument but I have always been puzzled by this notion from Powell v Alabama. Anybody with
experience in nisi prius would know that the real
dangers to be apprehended are from incompetent
counsel.
MR JACKSON:	Well one of the dangers, Your Honour.

BRENNAN J: Well that is the most dangerous of all things,

is an incompetent counsel. Now what do you do? Do
you say that the presiding officer in this case,
Mr Slattery, is to, as it were, run the ruler over
counsel and say, well, although you are being paid,
you are not up to it?

MR JACKSON:

Well the same happens in courts, Your Honour,

of course.

BRENNAN J: Of course it does.

MR JACKSON:

Your Honour, that is, if I may say so with

respect, a somewhat dark approach to the - - -

McHUGH J: Not if you read as many appeal books as we do.

BRENNAN J: That is just a jaundiced view that we derive.

MR JACKSON:

Your Honours expect perfection, no doubt, but I

will not develop the point. One really, with respect, should not assume that cases will be
incompetently conducted. The fact of the matter
is, if one were to look at it statistically I
suspect, that the cases, if I could take it from
Your Honours' point of view, the ones that
Your Honours get are ones that fall into a number
of categories. First of all, the hopeless ones,
where people will not accept that they are already

hopeless. Your Honours' cases tend to get filtered
a bit. So there are hopeless cases and then ones
that have something in them. But inevitably,
Your Honours are likely to see a somewhat more jaundiced view of them than most people, I would
expect.
But, Your Honours, most criminal and other cases, we would submit, are conducted perfectly
competently. The deficiencies in cases mostly
coming about from the case that the cases are
deficient in the end. One side tends to lose.

BRENNAN J: There is a logical division which says, paid

legal aid equals adequate representation, and I

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4/5/94

have not been able to see that the equation is
necessarily or universally accurate.

MR JACKSON:

No, Your Honour, perhaps it does not need to be

stated as highly as that. Perhaps in the ordinary
course of events, leaving aside the incompetence,
the better view of things is that paid legal aid is
better than nothing.

MASON CJ: It is the nearest approximation that we can get

to it.

MR JACKSON:

Your Honours, that is what I was seeking to

say. The world may be imperfect but that is the nearest thing one can get.

Your Honour, I do not
know that I can take it any further, but there does
not really have to be the exact equation.
If I could take Your Honours, for just a moment, again, to our written submissions, and in
particular to paragraphs 11 and 12. Paragraph 11
is in response to the notion which has floated a
little today, and in some of the written
submissions, that the moneys that are required to
be spent require a legislative authority. Well, no
doubt in the end that is so but, Your Honours,
that does not prevent the absence of particular
legislative authority or the absence of any
legislative authority. It does not prevent a court
making orders in relation to the orders that may
result, one way or the other, in the State or a
government having to pay money.
If one is looking at the situation of any

order made by a court which has the direct or
indirect effect of a State having to pay money then
it may be, in the end, the person who has the
advantage of the order will go begging, but that
does not mean that the order is somehow invalid,
nor does it mean that in construing the powers of
the court or the powers of the Crown one should

work on the assumption that the order will go
unsatisfied. It certainly does not mean that the
notions presently involved should be given some
more limited meaning, nor the statutory provisions
some wider meaning because of the possibility that
an obligation which the State might not have
expected to have to pay, it may have to pay as a
practical matter in the end.
Your Honours, take arbitrations: now it may

be that a State government is involved in an
arbitration, they frequently are. Arbitrations
tend to go for ages, and they, ever hopeful, may
well think there is nothing that has to be paid. of the other side and makes an award of $5 or $6

Canellis(2)

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million it did not expect to pay. Well, now, I
suppose, a hard-nosed government could say, "We
will not enact the legislation that would authorize
the payment." It will not in fact. That will not
happen, or course, but it does not prevent the
arbitrator giving his award, nor does it prevent
the court enforcing it to the extent to which money
is made available, or recognize him I should say.
The other thing is what is in paragraph 12, and that is reference is made to the Legal
Commission Act but, Your Honours, it is not the

only way of providing funds by government. Now,
one could do it. One could, for example, in
respect of the $564,000 that has been made
available to Mr Kalajzich, that could be done as,
according to the judgment it was, by a grant
directly from the Crown, may be in dribs and drabs,

but by a grant from the Crown. It could be done,
perhaps, by making a special grant to the Legal Aid
Commission which might then disperse it. There is
no particular reason, in our submission, why any
grant would have to be made through the Legal Aid
Commission. Very commonly, of course, grants of
this kind are not dealt with in that way.
Your Honours, those are our submissions.

MASON CJ: Thank you, Mr Jackson. Mr Gordon, you said

earlier that you were going to adopt the
appellant's submissions.

MR GORDON:	Indeed, Your Honour, that is the position.
MASON CJ:	I should have called on you earlier if you had

proposed to do anything but adopt the submissions
that were put by the Solicitor-General.

MR GORDON:

Your Honour is most kind.

I had intended not to

call or to make any further submissions; to adopt
only the submissions made by my learned friend, the

Solicitor-General for the State of New South Wales,
and the Solicitor-General for the State of South
Australia and, bearing in mind the dangers of
repetition, I thought that there was nothing
further I could usefully add.

MASON CJ:

I think that is a very commendable approach, if I may say so; one that others might take up and

follow in the future.

Mr Einfeld.

MR EINFELD:

When Your Honour said "in the future", I assume

Your Honour means, at least, after I have finished
my submissions.

MASON CJ: Yes, but I may acquire wisdom through hindsight

during the course of your address, Mr Einfeld.

Canellis(2)

4/5/94

MR EINFELD:

Your Honours, the difficulty in a case such as

this is not an uncommon one but involves, in our
submission, the need to reconcile theoretical, or
policy matters, the potential for impact on public
funds generally and the like, with the
practicalities involved in the conduct of an

inquiry such as the one in question here. The
difficulty is, perhaps, best demonstrated by the
reference by the Solicitor-General for New South Wales earlier in the day to the passage from the
American decision in Mathews v Eldridge, contained
in appendix A of his outline of submissions, at
pages 4 to 5, where Your Honours will recall
Mr Mason sets out what he says are three indicia to
which the American cases have looked in, at least,
a non-criminal context or the civil context, as
providing a guide for the invocation of the due
process protection, as he calls it.
Your Honours, it is suggested there, for

example, by my learned friend, that the protection of Mr Elkins' interests in this case are well met, well served, adequately served during the course of
this inquiry by the Commissioner, or counsel
assisting or even, it is suggested, the proposed
contradictors, as my learned friend described them,
to care for and provide adequate protection for,
the interests of Mr Elkins.
Mr Jackson has directed Your Honours'

attention and, if I may just briefly go back to it,
to the judgment in Powell v Alabama, which appears
set out at page 260 of the appeal book, at point 9,
commencing at about line 28, and may I just revisit
it briefly for the purpose of opening our
submissions.

MR EINFELD:

The remarks of course of Justice Sutherland, as

they appear at the foot of the page, are as much
true of the commissioner undertaking an inquiry
such as is Mr Slattery as they are of a trial

judge. In our respectful submission, it is quite
impractical and indeed, may I say respectfully,
unreal, to assume that someone such as a
commissioner conducting an inquiry which is
estimated according to the passages set out in the
appeal book to run from somewhere between nine to
twelve months or thereabouts, to expect for a
moment that the commissioner can play any realistic
part in affording protection to an affected person
of his rights of reputation and his rights to what
we would suggest is a fair hearing - no doubt;
there is not the slightest shadow of a doubt that
Mr Slattery would do his best to achieve it as
would counsel assisting.

Canellis(2)

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To suggest, for example, that those Mr Mason

describes as the contradictors no less than the
Director of Public Prosecutions should in some way
be capable of giving advice to Mr Elkins during the
running of this hearing as to what is or is not in
his interest what those witnesses whom he should
seek to cross-examine or not seek to examine, when
he gives his own evidence in response to the
summons that has already been issued to him, when
he should or should not claim the privilege against
self-incrimination, when it may well be in time as
the result of this very inquiry, that it is the
Director of Public Prosecutions who may be minded
to put Mr Elkins on trial following an adverse
report if there be one, is, with respect, a total
illustration of the difficulty of relying upon the
theoretical principle and suggesting it applies to
the practical day to day running of this inquiry.
It is, with respect, inconceivable that the

combination of admitted fairness of an attempt to
provide assistance of the commissioner, counsel
assisting, the Director of Public Prosecutions can
hope to be able to serve the interests of any
affected person in an inquiry such as this, as

could his own legal representative. We start with
this, Your Honours, because it is a manifestation

of what we say is the real problem. It is well to
speak about public fund ramifications of a
declaration such as has been made by the Court of
Appeal. If that were a foundation for refusing
relief of the kind granted here and indicated by
the Court of Appeal, Dietrich itself would have
been differently decided.
I will return to this shortly, but it is

important, with respect, as one approaches this
particular problem not only to recognize, we
submit, that one cannot simply determine the
content and dictates of procedural fairness as they
apply in a particular case in a vacuum, and that of

course one has to give due account to all of the
surrounding circumstances including the legislation
by which the inquiry is established. But one also
must bear in mind, in our submission, that the
entitlement to natural justice or procedural
fairness has been recognized by this Court as a
fundamental right not to be interfered with without
an indication of express statutory intendment.
Now, there has been a shift of focus in the

submissions of the Solicitor-General for

New South Wales and those intervening. From a
consideration as to whether the particular
legislation in question here, for example
section 474G(4), in ·any way derogates from the
common law rights, whatever be their exact content,

Canellis(2)

4/5/94

of an affected person in an inquiry such as this
one, established under section 475, to an intended
implication to delimit the scope and ambit of the
content of natural fairness by reference to
entirely external legislation such as that
establishing legal aid schemes in New South Wales
and, it would seem, the other States from which at
the most one could only, by remote implication,
infer some limitation upon what might otherwise be
the ordinary rights to natural justice of a
participant in a judicial, if it be so, hearing but
certainly one in which the inquirer is entitled to
act judicially.
Now, Your Honours, can I say secondly, by way

of introduction, something very briefly about the
form of relief to which my learned friend,

Mr Jackson, addressed some remarks. we adopt,
respectfully, my learned friend's submissions in
relation to the remarks of the Court in Ainsworth
v Criminal Justice Commission in this respect, but
we would invite Your Honours' attention in
particular to the form of the declaration that was
made in Ainsworth, (1992) 175 CLR 564, and the form
of the declaration is set out at 597, at the
conclusion of the page.
The Court ordered that in lieu of the orders of the Full Court of the Supreme Court of
Queensland:
declare that, in reporting adversely to the appellants in its Report ..... the respondent
failed to observe the requirements of
procedural fairness -

and to some extent I plead mea culpa, but the form
of the declaration made by the Court of Appeal in
this case has its origins, as will be seen, and
certainly its equivalence in the terms of that
declaration. It necessarily - - -

McHUGH J: The difficulty is, Mr Einfeld, is that that

declaration speaks after the fact.

MR EINFELD: Quite, that is the point. Once the Criminal

Justice Commission's report was published, it
became apparent to Mr Ainsworth and his companies
that adverse comment had been made about him. We
should not have to wait until the end of this
inquiry to ascertain - indeed we are not required,
in our submission, a submission I will seek to
develop shortly - to obtain from the court a
declaration that we have been treated in a manner
which was procedurally unfair.

Canellis(2)

4/5/94

al
Now, I understand fully the difficulties

inherent in the precise wording of the declaration
made by the Court of Appeal to the extent that it
raises the problem, as Justice Brennan indicated a
little earlier, as to what, for example, is meant
by proper or adequate representation.
That clause is inserted in the declaration

because it needs to address the situation in which the court is asked to address the problem not only
when afterwards an otherwise internal report
becomes released by an inquiring authority at which
point in time, for the first time it becomes
apparent to the person whose reputation is
adversely affected that it already has been.
We know here that our reputation is about to

be adversely affected. We know here, from the form of a petition, from the form of the opening address of counsel assisting the inquiry, from the remarks
made by the Commissioner himself - - -

McHUGH J: But when you say, "adversely affected", you mean

it is going to be adversely affected because of the
reflections which may be made or will be made on it by those giving evidence on behalf of Kalajzich but
it is not adversely affected at this stage at all
events by what Mr Slattery does.

MR EINFELD:

In part that is right.

I want to come shortly

to this question of the point of time in which the
right to natural justice is vindicated in a bit
more detail if I may.
We know, as we live in the real world, that

reports of public hearings which record in the open
media, allegations, "QC asserts Elkin's procured
conspiracy between police and a variety of other
witnesses so as to frame Kalajzich". That the
immediate consequence of an open public inquiry
where we are told that the very path in which the

in such a conspiracy in order to exculpate inquiry is which to travel is to implicate Elkins

Mr Kalajzich. We know that it is inevitable. But
well before Mr Slattery comes to prepare, let alone
deliver his report, there is a real risk, not a
fanciful risk but a very real risk of the
blackening of my client's reputation.

McHUGH J:	I accept that, but that occures in committal proceedings, it occurs in just about any form of
proceedings, that somebody in the witness-box will
make an allegation.
MR EINFELD:	In which the per~on of whom such allegations

are made is afforded procedural fairness in all
sorts of ways, and so it should be here.

Canellis(2)

4/5/94

McHUGH J: Sometimes that person is, but I would have

thought more often than not that the person is not.
You do not interrupt a trial to say, "Here is X.
Some reflections were made on him or her yesterday.
He wants to get into the witness-box and deny it."

MR EINFELD:

All of which is of course correct.

I want to

deal as I say, separately and shortly if I may with
this question of the point in time in which the
right is activated and also of what is the right
that needs to be protected here; a matter which has
been raised by at least two of Your Honours during
the course of the afternoon.
What I was seeking to do at the moment by

drawing attention to the form of the declaration
was to indicate that the problems that are
attendant upon the terminology or the verbage
contained in the Court of Appeal's declaration are
brought about, are a function of the fact that the
attempt is made now to prevent an injustice arising
from a denial of natural justice, a factor not
attendant upon the form of the declaration in
Ainsworth for example.
If we are correct in saying that the right is

activated now, then the problems in the verbiage·
are mechanical ones, and we would respectfully
adopt what Mr Jackson said earlier, that when one speaks of proper representation, one does so upon
the assumption that there is no question of
professional expertise or competence involved, but
proper in the sense of the capacity of the
represented person to have legal representation,
let us say, of counsel. It is quite true - - -

McHUGH J: Any representation?

MR EINFELO: It is quite true -

McHUGH J: Somebody just called to the bar?
MR EINFELD:	It is quite true that those kinds of considerations arise save for the fact that in this case the Commissioner himself has declared that
which he, as the person closest to the conduct of
the inquiry, regards as being such appropriate representation. That declaration is contained as
an annexure to the affidavit of the solicitor instructing the learned Solicitor-General for New
South Wales in support of the notice of motion to
which my learned friend made earlier reference.
In our submission, whilst the terminology of the declaration may.create a problem of semantics, the question of the entitlement to relief of the
kind sought would not be impeded by that semantic

Canellis(2)

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•

argument. In I think one of the principal
judgments in Dietrich - I will have it extracted
overnight - we are reminded again that if there has
been a wrong perpetrated, then the remedy will be moulded to overcome the deficiency. The point of
my, as I say, introducing my submissions in that
way is to say that the problem of terminology to
which reference has earlier been made has arisen
not because of any inherent difficulty with the
concept of an application of natural justice
involving a requirement for legal representation,
and on the facts of this particular case as it
transpires, that the only way to afford natural justice to these respondents is to afford legal
representation funded by the State which has
established the inquiry, but merely a matter of
giving effect to an appropriate form of relief and
is not a substantive objection to the kind of
relief sought.
Your Honours, I was about then to turn to the

principal matters which we seek to put to the Court

in answer to the submissions against us. I note
that it is almost time - - -

MASON CJ: Mr Einfeld, could I ask you how long you expect

to take?

MR EINFELD:	I would think I would be something in the order of an hour or thereabouts, Your Honour.
MASON CJ:	I see. Mr Solicitor for New South Wales, how

long do you expect to be in reply?

MR MASON:

Ten minutes at the most.

There is the

application .....

MASON CJ:	In that case we will adjourn until 9.30 tomorrow morning.
AT 4.14 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 5 MAY 1994

Canellis(2)

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[1994] HCATrans 303

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Standing

Statutory Construction

and described elsewhere as Mr Elkins, and if it is	first respondent in the second appeal, known as AB
convenient to Your Honours, that is how we may
describe him for the purpose of the appeal.
(instructed by Verekers)

of the third respondent in each of	the appeals with
my learned friend, MR J.I. DORIS.	(instructed by
McGlynn & Partners).

even appear in person for very special reasons.	If
the Court pleases.

of a decision. The second feature which militates in favour	of there being intervention in constitutional cases
is that the Commonwealth and the States in one sense represent the polities on the one hand that
go to make up the Federation, and so one can
understand intervention, and also that they represent the people of those polities in their several capacities as citizens of the State and of
the Commonwealth, and one can understand that those people should in a sense be heard.

got it wrong. Otherwise the States would not be so
concerned.	Your Honours, it is a kind of subtle
influence.

matters that is involved in this case, is how far	the courts can go in framing, or adjusting, legal
rules to deal with that complexity. Maybe the court has to go back to more traditional ways. But
to throw more money via a legal aid system is not necessarily the response one makes to it.

*Jago,* 168 CLR 23, and at page 33 Your Honour the	Because there is no constitutional guarantee
of a speedy trial, the remedies are
discretionary and necessarily relate to the
harm suffered or likely to be suffered ..... The
test of fairness which must be applied
involved a balancing process, for the interests of the accused cannot be considered
in isolation without regard to the community's right to expect that persons charged with
criminal offences are brought to trial.

law if the appellants are unrepresented.	The
answer is not concluded by saying that the

or a solicitor assisting if they wish any of those to give evidence. So it is fairly flexible in that	respect but, as Your Honour points out, there is no
obligation to call. In my submission, one should approach this question on an assumption that the
right thing will be done in the inquiry rather than
the converse and that people will act fairly and
accommodate themselves to the actual situation of
the parties as to the way in which the issues
develop.

error of endeavouring to use a circuitous device to	same effect, the court was falling into the further
overcome a constitutional prohibition.

aid.	We have been given $22,000 from the Legal Aid
Commission, we need more".	The Court of Appeal, by

that will perhaps answer that.	May I just defer it
for one minute.

question.	Does the Act itself - I take it it does
not define	"legal aid". There is certainly no
definition	in the definition section.

were separately represented in the proceedings
before the Court of Appeal.	The State was a party

each test and had a statutory right of standing.	So this was, with respect, just a pleading point	that the court latched on to and not indicative of
any relevant error.

submit that	the court paid no regard to the other
obligations	of the Commissioner and of counsel
assisting.	We simply refer, Your Honour, to
passages at	page 87 of the appeal book at line 5,

and so we draw that distinction between procedural
fairness, and the right to a fair trial.	We do not

distinctions could be drawn between the outcome
here and that in Dietrich.	The third was that

be material.	So in Dietrich we saw the right to
representation at trial.	One might think there may

appellant and the others who have intervened.	May
we seek to summarize our position in four
sentences.

order which is the subject of the appeal.	If the
Court pleases.

Dietrich, 177 CLR 312.	I can just read a sentence
from that page.	Your Honours said:

granted, and then the man pleaded guilty and
decided he would like to change his plea.	So there
is no pattern that has emerged.

statutory inquiry. That being so, why cannot a	the rules of natural justice may apply to a
court, in an appropriate case, stay the exercise of
the power if there will be a breach of the rules of
natural justice?

implication excluded.	So that is the first
inquiry, Your Honour.

Your Honours will see at page 188 commencing about	line 3 and going through to the bottom of the page
and perhaps just the top of the next page that
His Honour refers to the fact that a stay of
proceedings was discretionary and then he went on
to balance the competing interests, as Your Honours
will see, through the remainder of page 188.

paragraph on the page, about the form of relief.	I
will not go through that paragraph, but may I take
Your Honours to the last paragraph on page 581
where there was a reference to the:

It is appropriate that a	declaration be made
in terms indicating that	the appellants were
denied natural justice.	That may redress some
of the harm done.

nothing more happens, no injunction or stay is	granted, and the proceeding goes ahead and the
report is made, he is able to say in relation to it, that it was made in breach of the requirements.

not the Rolls Royce.	Your Honour, I will come back
to that part shortly, a little later if I may.	But
that is essentially the point we would seek to
make.
Your Honours, could I go then for just a moment to the basic facts.	Your Honours have had
some of them.	The passage in which they are to be