cATCHWORODS Administrative lLaw - Judicial Review ~ Decisions by Royal Commissioner - Issue of subpoenas ~- Whether questions proposed to be asked are within terms of reference ~ Whether probative material concerning subject-matter needed to justify the issue. Administrative Decisions (Judicial Review) Act 1977 PETER HUGH LLOYD v. FRANCIS XAVIER COSTIGAN ESQUIRE Q.C. ROYAL COMMISSIONER ON THE ACTIVITIES OF THE FEDERATED SHIP PAINTERS AND DOCKERS UNION No. WAG 40 of 1983 Bowen C.J., Lockhart and Morling JJ. Perth 12 October 1983 WESTEPN ATSTPALIA CrSTETOT tECTSTFY | No. WAG 49 of 1525 GENEPAL BITS TON ' BETWEEN PETEP HMGH LLOYD Appellant AND H FPANCIS XAVTEP COSTIGAN ESOUIPE 0.C. royal COMMISSIONER ON THE ACTIVITIES OF THE PEDERATED SHIP PAINTERS AND TOCKEPS UNION Respondent ORDER JUDGES M&KING OPDEP : Bowen C.J., Lockhart and Morling JJ. WHEPE MADE t Perth DATE : 12 October 1983 THE COURT OPDEPS THAT: l. The appeal be dismissed. 2. Peter Hugh Lloyd pay to Francis Xavier Costigan his costs of the appeal. IN THE FELEFAL COUET cf ANeTEALTA Ps ET8 OLETPICT PEGTSTPY ho WAG £0 of 1963 SENERAL CDS TAN PETHEEN : EETEP HUGH LLOYD Appellant AND: : FPANCIS XAVIER COSTIGAN ESQUIPE 9.C. ROYAL COMMISSIONEP ON THE ACTIVITIES OF THE FEDERATED SHIP PAINTEPS AND DOCFERS UNION Respondent COPAM: Bowen C.d., Lockhart and Morling JJ. 12 October 1982 REASONS FOP JUDGMENT THE COURT: This 1S an appeal from a decision of a judge of this Tourt (Toohey J.) refusing an application made pursuant to the provisions of the Administrative Decisions (Judicial Pevzew) Act 19/77 ("rhe Act") by Mr Peter Hugh Lloyd, a sollcafor in practice in Perth. The respondent is Mr F.X. Costigan 8,.C. who is a Royal Commissioner carrying out an inquiry into the activities of the Federated Ship Painters and Deckers Union. The inquiry is being held pursuant to letters patent issued by both the Commonwealth and Victorian Governments. The application sought the review of a decision described as: .. the decision of the Pespondent (hereinafter 'the Commissioner') that he may call before him pursuant to subpoena and examine on oath or rIaAMLnca on oath cefore nim che qi bevin 7.0, Fain in relation te s py WnariLes Watt £ Gen Ftv. Ltd., quer, June A. Brooker, the said Kevin and Emma E. Bain 'hereinafter 'the ansactions:" The apelication also sought the review of what was described as: . eanduct in which the Commissioner proposes enjgaqde whereby he proposes to recelve denes in relation ta the clients' {trans- The application has had a lengthy history. It was filed on 3 December 1982 and has been before Toohey J. on more than one occasion on interlocutory applications. An appeal by che appellant from one of the interlocutory orders made by Toohey J. was dismissed by the Full Court of this Court on 9 May 1982. On 18 October 1982 the respondent issued to the appellant two subpoenas returnable on 26 October 1982. One was a subpoena ad tCestificandum and the other was a subpoena duces tecum to produce: - "All notes, resolutions, correspondence, agree- ments, contracts, balance sheets, statements of account, auditor's reports, payment books, cash hooks, receipt hooks, bank books and any and all other likely documents relating to Hamidan Pty. Ltd., Fenmore Pty. Ltd.,. and/or Brunswick Oil NL and in cespect of the period commencing the lst January 1972 to and including the date of service of this summens". to gare evidence relarciny to Tonauastader Mining and Feplorarion Ni oof which damiaan Pry. Ltd. was said lo be a molly ovned subsidiary Hovever the respondent qave a ruling an 8 December 1982, Fhe afrect of whith was that he proposed to continue with hie inquiries w nd to require the appellant to give evidence. Thereupon the application under the Act was Tommenced. The application was expressed to relate to a decision of the respondent concerning both the appellant and Mr Bain. Mr Bain was not made a party to the application. Toohey J. held, correctly in our opinion, that in these circumstances he could not review any decision that Mr Bain should give evidence as the appellant Lloyd was not a person who was aggrieved by the decision that Bain should give evidence. No challenge was made Eo this finding of Toohey J. and accordingly it is unnecessary to consider the respondent's decision in so far as it affects Mr Bain. During the course of proceedings before Toohey J. an application was made to amend the application for an order for review. The appellant was permitted to add an additional ground but the learned Judge declined to allow amendments raising what was described as "an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made." His Honour refused to the permit this amendment because 1t sould have introduced quections of Ene bona fides of the respondent when the appellant haa consistently acknovledged from the outset of the peoceedings that rhose sona fides vere not in lssue. The refusal co permit chis amendment vas made the subject of some 'm f che vecunds of the appeal te this Court but these grounds were abandoned at the hearing. We should state that before us mounsel freer cle appeilant 'iiselaimed any attack on the bona Fides of the respondent. The principal argument advanced in support of the appeal was that the Learned trial judge erred in rejecting an argument put to him that there was no evidence or other material before the respondent to justify his making a decision to call the appellant to give evidence before him. The matter proceeded before Toohey J. upon the basis that the questions for the Commissioner to determine having regard to his terms of reference 'ere: 1. Have members of the union been engaged in tllegal activities? 2. Have persons associated with the union or 1ts members been enqaged in illegal activities? 3. Have persons been using the union or its members tor illegal activities? On the hearing of the appeal counsel for the appellant contended that this formulation of the questions arising under the terms of reference was too wide. But an examination of the letters patent shows that this is not so. As Toohey J. pointed ait m gut en hLi eo tAcans, the ceems are vary wide indeed. Ther requires one bosrpandenr ce inauige site fhe alleved riledal activities of oersone associated vith the union or any of its m iD mbere The terms of reterence do not confine those illegal activities to activities having some association with the union. The illegal activities of an associate of the union may be inquired into even if those activities might appear to be remote from the affairs of the union itself. However as Toohey J. pointed out in his judgment, cince 1 is the actavities of the union vith which the respondent 1s primarily concerned, once it appears that some 1lleqal aclivity of an associate of the union has no implications for Lhe union itself or for any of 1ts members Ehere would be Little justification for proceeding further with that line of inquiry. But, as the learned trial judge pointed out, betore that stage 1s reached extensive investigation may be required. There was evidence before Toohey J. that Hamidan Pty. Ltd. may have had some association with the union or its members. The appellant contended that at the time he or his clients first became involved in the affairs of Hamidan Pty. Ltd. that company no longer had any association with the union or its members. But as Toohey J. correctly pointed out, the making of such an assertion by the appellant provided no answer to the respondent's right to pursue his investigation. The respondent vas entitled to test the appellant's assertion. In this respect it is to be observed that there was evidence berore the learned crial jiudeve that two members of the union had been aztrecrers of Hamidan Fty. Ltd. There as also ecidenc> rnat Mr Cluya 2 client z referred 9 in the subpoena had, af fame graze. Lecomoe what was described as ""cub-qyoint venturer? und conte tburecs' Fo a venture undertaken by Hamidan Counsel ror Fhe appellant contended that there was a complete absence of probative mater1al upon which the Commissioner could come to the view that there was any association between any member of the union and Hamidan Pty. Ltd. as at the time the appellant had anything to do with the company. The absence of such probative material, so it was contended, vitiated the decision of the respondent to issue the subpoenas and to proceed to examine the appellant. This submission must be rejected. It 1s a misconception of the function of a Royal Commissioner that before he can invoke his inquisitorial powers there must be before him material probative of the facts the very existence of which his connlsezlon has directed him to investigate. Indeed, material probative ot the fact that there was an association between union members and Hamidan Pty. Ltd. and the further fact that this ceased at some time after which other activities were undertaken by that company might well call for inquiry by the Commissioner in the discharge of his duties. Furthermore, as Toohey J. pointed out in his reasons, the respondent has not made a finding which may be tested against the presence or absence of relevant evidence. He 1s making an inquiry. Even the absence of evidence cannot properly inhibit the making of such an inguiess "we Pos. 7 Coshiyar «No. 2: 161922) el ALLLP. B37 4b Wd Bi We agree vith Tochey J. that it is not possible ta say that questions that tne respona Og nt proposes to ask of the appellant bearing upon a company of vhich members of the union were directors cannot be said to be within nis terms of reference. (n this vraspect Toohey J. referred toa a passage in the judgment ot Ellicott J oun boss v Castiqan (1982) 41 A,L.R. 319 at 334 with 'which we alsa anree. His Henour there said: "Where broad terme of reference are given to it, as in this case, the Commission 1s not determin- ing issues betveen parties but conducting a thorough investigation into the subject matter. It may have to follow leads. It 1s not bound by rules of evidence. There is no set order in which evidence must be adduced before it. The links in a chain of evidence will usually be dealt with separately. Expecting to prove all the links in a suspected chain of events, the Commission or counsel assisting, may neverthe- less fail ta do so. But if the Commission bona fide seeks to éstablish a relevant connection between certain facts and the subject matter of the inquiry, it should not be regarded as out- side its terms of reference in doing so. This flows from the very nature of the inquiry being undertaken." Considerations of the kind referred to by Ellicott J. make it impossible to say in the present case that the respondent does not have authority to inquire into the matters into which he proposes to inquire because those matters are not within his terms of reference. Counsel for the appellant presented a further argument that the trial judge erred in admitting into evidence a ? Etaramenr rurpnipibe a ty Phe esemaqqenc purcuant mr tlaF ol cne Art Phos oraremen. vac Foarmished mo che recpoanaent vithouc OPS mtz ss Faogit rantenrion Phar he vad nar oanliqgea by the racthien et Finish oof The sesnrents £ Ehe statement vere not relied upan bye the -e1al Jugge sn arriving at hie decision. It 1: plain thar fhe other material before his Honour disclosed that members of che union had been directors of Hamidan Pty. Ltd. and that the company mav have been engaged in illegal activities. Counsel for the appellant arqued that, notwith- standing this, Ehere was nevertheless no evidence that at the time the appellant's clients had any association with the company any alleged 1llegal activity tas then being engaged in er that the union's association with the company then eentinued. Whether or not this was so at the time the respondent made the decisions under challenge he was not debarred from making further inquiry into every aspect of the matter. The existence of probative material is relevant when the respondent 1s making findings and recommendations to the Government. But the exercise of the inquisitorial powers vested in the respondent does not require the presence of such material. Rather its existence can generally be determined only after the inquisitorial power has been exercised. A Royal Commissioner must, of course, always act in good faith within the terms of his commission. In view of our conclusions on the arguments advanced on behalf of the appellant we do not find it necessary to 'D by Ehe respondent pursuant te Order 52 Pule 22 Pules The cupstance of Ehis netice is th proposed ro sontend rnat the trial Judge erred in deciding fhat rt y wu ns Oy] "4 Th a ia fey iD fc) i bed " or a a po} mn a a Lay iD a ra mn Qo fy ct H o> fF 'D r of review under the We would dismiss che apreal vith costs. Ice vfy that ros and the S prececing pi ges are a true copy of the reasons for judgment herein of the Court Lo Fo tee fle - 6 Associate Dated (2 [cofes < § " ek ee gs Fa en LE he