FEDERAL COURT OF AUSTRALIA Firebrace v Indigenous Land Corporation [2000] FCA 1257 ADMINISTRATIVE LAW - Natural Justice - Apprehended Bias Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) - Part 4A - "Misbehaviour" within s192(H)(1) - private inquiry into a statutory corporation formed under Part 4A appointed by Minister for confidential report to him for his consideration - inquiry to be conducted by a person professionally in practice outside the Public Service - whether provision of draft chronological narrative of events to the applicant as Chairperson of the Corporation (as well as to the other directors all being the subject of the inquiry) evidenced bias or grounds for apprehended bias against the Chairperson - whether as a matter of procedural fairness the applicant should have been given an opportunity to examine or cross-examine witnesses - whether the applicant should have been provided with her legal costs of representation in connection with the inquiry - whether the person requested to conduct the private inquiry and report to the Minister was otherwise obliged to give natural justice to the Chairperson in connection with the private inquiry - relevance of privately expressed views of a senior public servant concerning the Chairperson of the Corporation constituted evidence of bias attributable to the Minister or the private inquirer - whether alternatively mediation or separate trials should be ordered at the request of the Chairperson in advance of the private inquiry against the opposition of the Corporation and the Minister. INJUNCTIONS - balance of convenience - weakness of case of applicant for relief on balance of convenience - whether the subject matter of the litigation related to matters of public interest. Aboriginal and Torres Strait Islander Commission Act 1989 Cth, ss 6, 192H, 192K, 192M New South Wales v Canellis (1994) 181 CLR 309 referred to Gaisford v Hunt (unreported, Federal Court of Aust, Beaumont, O'Loughlin & Lehane JJ 6 December 1996) distinguished Kilthistle No. 6 Pty Ltd v Austwide Homes Pty Ltd (unreported, Federal Court of Aust, Lehane J. 10 December 1997) applied CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 referred to Rose v Bridges (1997) 79 FCR 378 applied SHARON LYNETTE FIREBRACE v THE INDIGENOUS LAND CORPORATION AND OTHERS A46 of 2000 CONTI J 5 SEPTEMBER 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY A46 OF 2000 BETWEEN: SHARON LYNETTE FIREBRACE APPLICANT AND: THE INDIGENOUS LAND CORPORATION FIRST RESPONDENT JOHN WILSON SECOND RESPONDENT STEPHEN SKEHILL THIRD RESPONDENT JUDGE: CONTI J DATE OF ORDER: 5 SEPTEMBER 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Application be dismissed. 2. The Applicant pay the costs of the First Second and Third Respondents of the Application. 3. There be no order as to the costs of intervention of the Minister for Aboriginal and Torres Strait Islander Affairs. 4. The proceedings be stood over for directions on a date to be fixed at the request of the Applicant. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY A46 OF 2000 BETWEEN: SHARON LYNETTE FIREBRACE APPLICANT AND: THE INDIGENOUS LAND CORPORATION FIRST RESPONDENT JOHN WILSON SECOND RESPONDENT STEPHEN SKEHILL THIRD RESPONDENT JUDGE: CONTI J DATE: 5 SEPTEMBER 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 2 June 2000 the Third Respondent ("Mr Skehill") was appointed by the Minister for Aboriginal and Torres Straight Islander Affairs to conduct an inquiry ("the Inquiry") into allegations which had been made concerning the behaviour of the Directors of the First Respondent the Indigenous Land Corporation ("the Corporation"), and to make a report back to the Minister containing recommendations as to whether the behaviour of any of the Directors constituted misbehaviour within sub-section 192H(1) of the Aboriginal and Torres Strait Islander Commission Act 1989 ("the Act"). The Minister requested that the Report of the Inquiry be provided to him by 31 August 2000 but the Report has not yet been completed for reasons which will become apparent. The Inquiry is private in nature, and thus for instance without any authority in Mr Skehill to compel the giving of oral evidence or the production of documents. Pursuant to sub-section 192H(1) of the Act, the Minister is empowered to terminate the appointment of a director of the Corporation because of any such misbehaviour, after consulting first with the Aboriginal and Torres Strait Islander Commission established under section 6 of the Act. 2 Part 4 A of the Act relates to the Corporation and to the Aboriginal and Torres Strait Islander Land Fund and contains fourteen (14) Divisions. The Corporation is established by virtue of sub-section 191A(1) as a body corporate with perpetual succession. The statutory purposes for which the Corporation is established are to assist Aboriginal persons and Torres Strait Islanders to acquire land and to manage indigenous held land (section 191B). The statutory functions of the Corporation divide into land acquisition (section 191D) and land management (section 191E). Section 191V provides for a board of directors of the Corporation, comprising a Chairperson, a Deputy Chairperson, the Commission Chairperson and four ordinary members. By virtue of sub-section 191X(2), the Chairperson and at least four other directors must be Aboriginal persons or Torres Strait Islanders. Division 8 of Part 4A governs the appointment of the General Manager of the Corporation and section 192M stipulates that the General Manager holds office during the pleasure of the Corporation's board of directors. Finally I would add reference to section 191W, which provides as follows: "It is the responsibility of the Indigenous Land Corporation Board to ensure the proper and efficient performance of the functions of the Indigenous Land Corporation and to determine the policy of the Corporation with respect to any matter." 3 The Applicant in the proceedings ("Ms Firebrace") is and has been at all material times the Chairperson of the Corporation. She seeks an interlocutory injunction to restrain Mr Skehill from proceeding with the Inquiry mainly because of actual or apprehended bias and for breach of the rules of natural justice. The Corporation, being of course the First Respondent, would be relevantly affected by any suspension or discontinuance of the Inquiry, as would the Second Respondent who is the General Manager of the Corporation, but in any event the First and Second Respondents have the same legal representation. Mr Skehill is the Third Respondent, and he has provided a lengthy report on his involvement to date by affidavit, and although legally represented, has not sought to make any submissions at the hearing of the present Application. The Commonwealth of Australia has intervened in these interlocutory proceedings upon the basis of leave granted by me for that purpose. Plainly it has a relevant interest in the outcome of the present interlocutory Application. It is contended on behalf of Ms Firebrace that the existence of bias or apprehension of bias may be found or inferred from the following alleged facts matters and circumstances: (i) The circumstances of Mr Skehill's appointment; (ii) At an early state of the Inquiry, Mr Skehill had expressed a firm view to Ms Firebrace that the suspension of the General Manager Mr Wilson was wrong and Mr Skehill had thereby prejudged the issue of misconduct; (iii) A document prepared by Mr Skehill headed "Draft Factual Chronology" dated 27 July 2000 was biased and selective in its reporting of facts, contained some 45 pages of random hearsay and opinion, and is biased towards a finding of misconduct against the Applicant; (iv) Such "Draft Factual Chronology" document did not consider the conduct of other directors other than in the context of the biased and selective reporting on Ms Firebrace, and contained random insults, hearsay and opinion and is biased towards other directors; (v) Mr Skehill had ignored the fact that the board wrongfully and contrary to statute purported to pass a resolution standing Ms Firebrace down; (vi) Mr Skehill had ignored the conduct of a director Mr Baffsky directing Mr Wilson to refuse to co-operate with Ms Firebrace and to wrongfully withdraw her entitlements; (vii) Mr Skehill had ignored the fact that Mr Wilson and Mr Baffsky had altered the terms of reference of the inquiry being undertaken by Sir Laurence Street; (viii) Mr Skehill had ignored the fact that Mr Baffsky had recommended the appointment of Sir Laurence Street, and has conferred with Sir Laurence Street in private about the staffing and conduct of his enquiry, despite the fact that the conduct of Mr Baffsky was to be a subject of the enquiry; (ix) Mr Skehill had ignored the fact that Mr Wilson was not validly appointed and did not have a contract of employment or an instrument of appointment at the time, and was not an employee or an acting employee when he was stood down by Ms Firebrace; (x) By not affording Ms Firebrace natural justice in the conduct of the enquiry, Mr Skehill had demonstrated bias against her. To the extent to which there presently exists any evidence or basis in law to support the foregoing allegations at this interlocutory stage will later be addressed. 4 It is further contended on Ms Firebrace's behalf that she had been denied natural justice in the conduct of the Inquiry and in particular: (i) The Inquiry was flawed from the outset because Mr Skehill did not have the powers to provide natural justice to Ms Firebrace, and that she was "to be tried and convicted of misbehaviour and sacked from one of the most important positions under [the Act] by an enquiry that does not have the power to ascend procedural fairness". Further Mr Skehill does not have the power to charge Ms Firebrace, summons witnesses, apply the rules of evidence, take evidence on oath, permit cross-examination and re-examination, permit legal representation and allow legal representatives to hear the evidence or the submissions of others to him or to make submissions on fact and law or submissions in reply; (ii) Ms Firebrace had not been informed of the nature of the charge that "are brought against her in an investigation, which is to result in a finding of misbehaviour against her"; (iii) Ms Firebrace had not heard any of the evidence of the witnesses; (iv) Ms Firebrace had not had an opportunity of cross-examining witnesses; (v) Ms Firebrace had been given insufficient time and resources to investigate and respond to the "Draft Factual Chronology" containing some 45 pages; Again, to the extent to which the foregoing allegations have any evidentiary or legally justifiable footing will also be later addressed. It suffices to point out at this stage that the bias particular (x) is seemingly at odds with the natural justice particular (i). 5 It was further contended that Ms Firebrace had been denied funding for legal representation in connection with the Inquiry, and therefore had been denied natural justice. In light of the reasons for judgment of the High Court in New South Wales v. Canellis (1994) 181 CLR 309 at 331, I do not think that it is appropriate to give further consideration to that contention. It was conceded incidentally by Ms Firebrace's Counsel to the effect that she was not without funding for her legal costs of representation in the present proceedings. She was of course represented in Court by Counsel briefed by the National Aboriginal and Torres Strait Islanders Legal Services Secretariat. No evidence has been advanced on affidavit as to Ms Firebrace's financial means or resources. 6 Submissions were also advanced on behalf of Ms Firebrace on the balance of convenience, primarily on the basis that her case was asserted to be strong and the balance of convenience otherwise favoured the grant of an injunction. Moreover, it was submitted that the subject matter of the litigation would be denied to her if Mr Skehill is not to be so restrained, because, so it is propounded, he will certainly make a finding of "misbehaviour" against her within the context of the legislation, and the Minister will therefore certainly remove her before the litigation would be concluded. Such latter aspect of the submission was pressed notwithstanding the terms of section 6 of the Act, which requires the Minister to first consult with the Commission before terminating the appointment of a director. 7 I should now make reference to the circumstances leading to the present appointment of Mr Skehill. 8 By letter dated 28 March 2000, the Minister wrote to Ms Firebrace as follows: "I note that the Board has now given consideration to the position of the Chief Executive Officer and determined that his suspension was invalid. This is consistent with my understanding of the requirements of the Act which provide for the Board to make decisions about the employment of the General Manager. I also note your advice concerning the other issues I had raised in my recent correspondence. I am pleased that the effect of the Board's decision is that no continuing difficulties arise from the purported suspension of Mr Wilson. I would encourage the Board to expedite the action required to formalise Mr Wilson's appointment. I remain concerned about the apparent differences of views between yourself and Mr Wilson and trust that they will be resolved to the satisfaction of the Board. I also trust that as Chairman you will be able to work effectively with the other Board members. Clearly a situation where the Chairperson of a Board is in disagreement with the majority of the members of the Board cannot, in the interests of the effective performance of the organisation, be allowed to continue." The letter is plainly framed in constructive terms. I would mention in passing the view expressed by the Minister as to the need for the Board, and not the Chairperson alone, to dismiss the General Manager would seem to be sound, in the light of sub-section 192K(1) and section 192M of the Act. 9 On 19 April 2000, four directors of the Corporation, namely Messrs David Baffsky, Clem Riley and Kevin Driscoll and Ms Lois Peller, requested the Minister in writing in the terms set out below to terminate the appointment of Ms Firebrace on grounds of alleged misbehaviour in the following terms: "As Directors of the ILC (and a majority of the Board), we request you to exercise your power under Section 192(h)(1) of the relevant Act to terminate the appointment of Sharon Firebrace on the grounds of her misbehaviour. We make this request reluctantly but on, inter alia, the following:- 1. She has seriously misled the Board and members of the Board on more than one occasion. 2. She has purported to act on behalf of the ILC without authority. 3. She has, without authority, exposed the ILC to potentially serious legal and financial claims. 4. She has requested and/or authorised expenditure and appointments of staff without prior approval of the Board. 5. She has purported to make representations on behalf of the Board without prior authority. 6. She did not comply with your request for information and in a proper and timely manner. 7. She is not competent to be the Chairperson of the ILC. We enclose some correspondence and documents which highlight some of our concerns. These are summarised in the Schedule. Minister, this is a very urgent and serious matter as the Board, and indeed the ILC, is unworkable with the Chairperson who has on any view:- · breached the due processes; · breached trust and lied to the Board; and · breached proper authority. We make no comment in relation to the approaches made to the Australian Government Solicitor and to Mr Angelo Vasta QC referred to in Annexure C herewith, but believe they may in themselves require some formal investigation as they are potentially very serious matters and we will not be a party to in any way condoning them." 10 Ms Firebrace then wrote to the Minister on 7 May 2000, and the same four directors made a lengthy submission on 17 May 2000 to the Minister, each in relation to the content of such letter of 7 May 2000. 11 In the result, the Minister wrote on 30 May 2000 to the Deputy Chairperson Mr Clem Riley, one of the signatories to the above extracted letter to the Minister dated 19 April 2000, and also to such submission of 17 May 2000, and reported his decision to commission the Inquiry in the following terms: "I wrote to you on 24 May 2000 to inform you that I have been considering what action to take in light of the issues which you and your colleagues raised in your letters of 19 April and 17 May. I am now writing to inform you of the course of action I have decided to take. I have been very concerned by the divisions within the Indigenous Land Corporation Board and believe that the situation threatens the effective operation of the Indigenous Land Corporation. I am particularly concerned about the allegations made by you and your colleagues against the Chairperson and by the Chairperson about other Directors. My concerns have prompted me to commission a formal inquiry into the allegations to determine the facts and to advise whether the behaviour of any director constitutes misbehaviour under the ATSIC Act. The Inquiry, which will not be held in public, will commence shortly. The Inquiry will fully address all allegations and objectively examine the events of recent months. I would expect the inquirer to speak with you and each of your colleagues in the course of the Inquiry and I would ask that you make all efforts to assist in the conduct of the Inquiry including by facilitating access to all relevant records. The Inquiry will be required to report to me by 31 August 2000 at which time I will consider whether I should take further action. A copy of the Terms of Reference for the Inquiry is attached for your information. The Inquiry will be examining events since 9 August 1999 when the most recent appointments to the Board were made and will not, therefore, cover actions taken by the previous Board. You will recall that I wrote to you on 16 May advising that the ILC Board should establish an inquiry into the purpose of Roebuck Plains. Given the concerns which have been expressed about this purchase and that of Cardabia Station, I strongly encourage the ILC Board to establish a separate and independent inquiry into the events surrounding both the Roebuck Plans and Cardabia Station acquisitions. I also require that I be informed of the nature of the inquiry to be pursued and the outcomes of that inquiry as a matter of urgency." 12 The Minister's notification to Mr Skehill of his appointment, bearing the signed authority of the Assistant Secretary, Land Legal and Economic Development Branch dated 2 July 2000, was in the following terms: "I am writing to confirm that I have appointed you to conduct an inquiry into allegations made about the behaviour of Directors of the Indigenous Land Corporation (a copy of the terms of reference for the inquiry is attached). Your report of the inquiry will be required to make recommendations as to whether the behaviour of any directors constitutes misbehaviour for the purposes of section 192H of the Aboriginal and Torres Strait Islander Commission Act 1989. I am advised that you have met with officers from the Department of the Prime Minister and Cabinet and that agreement in relation to the terms and conditions of your appointment has been reached and a formal agreement is being prepared. I understand that you have agreed to commence the inquiry immediately and that you will provide me with a final report by 31 August 2000. Thank you for agreeing to undertake this important task." 13 The attached Terms of Reference were in the following terms: "INQUIRY INTO THE BEHAVIOUR OF THE DIRECTORS OF THE INDIGENOUS LAND CORPORATION Terms of Reference The Minister for Aboriginal and Torres Strait Islander Affairs is concerned about apparent divisions amongst the Board of the Indigenous Land corporation (ILC) which may have adverse effects on the ability of the ILC to effectively fulfil its statutory functions. A number of serious allegations have been made by Directors against the Chairperson and by the Chairperson against other Directors. The Inquiry will examine the allegations made about the behaviour of the Directors (including any acting Director), whether in the course of performing his or her duties as a member of the ILC Board or otherwise in connection with the ILC, since 9 August 1999. The Inquiry will report to the Minister by 31 August 2000 and make recommendations as to whether the behaviour of any Director constitutes misbehaviour for the purposes of section 192H of the Aboriginal and Torres Strait Islander Commission Act 1989. The Inquiry will not be conducted in public. The Inquiry will have particular regard to the following matters: a) The appointment, proposed appointment, suspension, or purported suspension of any General Manager or acting General Manager of the ILC; b) The remuneration and other entitlements (including travel allowance) claimed, received or due to any Director (or acting Director) and any improper expenditure of ILC funds by any Director (or acting Director); c) The access to and use of information in relation to the affairs of the ILC by the Directors (or acting Directors) and whether there has been any improper disclosure or failure to make proper disclosure of such information by any Director (or acting Director); d) Whether any Director (or acting Director) has acted or purported to act on behalf of the ILC without due authority; e) Any conflict of interest that may exist on the part of any Director (or acting Director); f) Whether each Director (or acting Director) has acted properly with respect to other Directors (or acting Directors) including meetings and by keeping the Board fully and accurately informed of ILC business; and g) Any other matter which might constitute misbehaviour on the part of any Director for the purposes of section 192H of the ATSIC Act. In considering whether any behaviour constitutes misbehaviour for the purposes of section 192H of the ATSIC Act, the Inquiry will have regard to, but not be limited by, any determination made by the Minister pursuant to section 4A of the ATSIC Act." 14 The Determination referred to at the foot of the Terms of Reference, namely that of the former Minister Tickner called ATSIC (Misbehaviour) Determination No. 2 made on 21 September 1994 under sub-section 4A(1) of the Act and gazetted on 28 September 1994, was in the following terms: "Behaviour taken to be misbehaviour for the purposes of the Act 3. (1) For the purposes of subsection 4A(1) of the Act, the following behaviour is taken to be misbehaviour for the purposes of the Act; (a) behaviour of a person at a meeting of an Aboriginal body that: (i) has a seriously disruptive effect on the meeting; and (ii) continues after the person who is presiding at the meeting requests the first-mentioned person to refrain from the behaviour; (b) contravention of subsection 90(2) of the Act; (c) provision of incorrect or misleading information for the purposes of, or that results in, the payment of remuneration or allowances under a law of the Commonwealth; (d) harassment or intimidation of, or interference with: (i) a member, or an employee, of an Aboriginal body in relation to the performance of the duties of the member or employee; or (ii) another person in relation to the performance of the duties of a member, or an employee, of an Aboriginal body; (e) behaviour that is found under the Sex Discrimination Act 1984 to be sexual harassment within the meaning of Division 3 of Par II of that Act; (f) behaviour of a member of an Aboriginal body in the capacity of member of that body that bring the body, or another Aboriginal body, into public disrepute; (g) bribery or attempted bribery; (h) behaviour of a member of an Aboriginal body for the purposes of, or that results in, influencing another member, or an employee, of the body or another Aboriginal body in the performance of his or her duties to gain an improper advantage; (i) serious misuse of the facilities, funds or equipment of an Aboriginal body; (j) commission of an offence (for which a person may, on conviction, be imprisoned) that results in a conviction. (2) For the purposes of paragraph (1)(j), a person is taken to have been convicted of an offence if: (a) the person has been convicted, whether summarily or on indictment, of the offence; or (b) the person has been charged with, and found guilty of, the offence but discharged without conviction." 15 The Board of Directors of the Corporation did respond to the Minister's request contained in the last paragraph of his above letter of 30 May 1999 by resolving on 6 June 2000 to appoint Sir Laurence Street to inquire into the Corporation's acquisitions of the pastoral properties "Roebuck Plains" and "Cardabia Station", but it does not seem to me that events concerning the conduct of such separate inquiry bear sufficiently upon considerations as to balance of convenience, as has been contended by the Respondents. Such additional or collateral inquiry has never been completed, for reasons which are unnecessary to set out. 16 However, the Corporation has also advanced submissions upon the balance of convenience issue here arising referrable to circumstances which are in my opinion relevant thereto, namely that despite a Board resolution to the effect that it should continue to function as normal during the period of the Inquiry by Mr Skehill, and should not move into a "caretaker" role, the Board has agreed that it would be preferable that the following matters should not be the subject of decision-making until the Board's final composition is known, notwithstanding the importance and urgency thereof, namely changes to the Corporation's core business of land acquisition and land management, legislative amendments to Part 4A of the ATSIC Act, and decisions regarding the financial year 2000-2001 budget. Another matter of importance, and in my opinion relevant to the balance of convenience, is the circumstance that the Inquiry and its likely areas of investigation have become a matter of public knowledge, by reason of the report published in The Australian newspaper of 13 June 2000 which has been tendered in evidence. For the foregoing two reasons, the continuation of the Inquiry rather than bringing the same to a halt until the conclusion of the present litigation may be weighed in the balance with competing considerations as to Ms Firebrace's main complaints of denial of natural justice and of bias or of apprehension of bias. 17 There can be no doubt as to the public importance of the Corporation and its activities. It is an independent statutory authority established under Part 4A of the Act to assist Aboriginal and Torres Strait Islander people to acquire and to manage land so as to provide economic, environmental, social and cultural benefits for themselves and for their future generations. It was so established as part of the response of the Government of the day to the decision of the High Court of Australia in 1992 in Mabo v Queensland (No. 2) 175 CLR1. The Native Title Act1993 thereafter provided for the establishment of the Land Fund to assist Aboriginal and Torres Strait Islander people to acquire land. Substantial moneys have been committed by the Government to such Land Fund. The Corporation's core functions are land acquisition and land management, and one incidental function is the investment of its liquid funds. 18 The proceedings were commenced by Statement of Claim filed on 8 August 2000 on behalf of Ms Firebrace. It seeks a total thirty-nine (39) declarations and orders in relation to each of the three Respondents, many of which, for what it may presently matter, are misconceived or at least dubiously framed. The relief sought specifically against Mr Skehill is as follows: "33. An injunction restraining Stephen Skehill from enquiring into the operation of the board until the (sic) he and the ILC accord natural justice to the Chairman and the determination of the issues herein; 34. A declaration that the said Stephen Skehill is disqualified from further proceeding with the subject inquiry; 35. An injunction restraining him forthwith from so proceeding; 36. An order to review the conduct and decision of Stephen Skehill; 37. Alternatively certiorari, mandamus or prohibition." 19 The Notice of Motion before me, which was filed on 21 August 2000, seeks the following interlocutory relief: "1. An injunction restraining Mr Stephen Skehill from proceeding to enquire into the conduct of the board of the ILC until the issues in this action have been determined or earlier order; 2. That the proceedings be referred to a mediator; 3. An order that the questions raised by claims for relief no. 1, 2, 4, 5, 7, 8, 9, 12, 14, 17, 19 and 24 in the Applicants' Statement of Claim be set down and determined as (sic) separately before trial in these proceedings. 4. Further or other directions or relief." Virtually all of this interlocutory hearing was taken up with the application for the injunction. The Respondents did not consent to mediation nor to a separate trial of issues, and I cannot identify any basis for imposing alternative dispute resolution or the delay of separate trials upon the Respondents. I agree with the submission of Dr Griffiths of Counsel for the First and Second Respondents that the issues in this case are singularly inappropriate for referral to mediation, involving as they do many disputed facts and issues of administrative law having negligible prospects of a mediated outcome (cf Kilthistle No. 6 Pty Ltd v. Austwide Homes Pty Ltd (Fed Ct Lehane J 10 December 1997). Moreover, the separate trial proposed would in reality involve virtually all of Ms Firebrace's case being heard in the first instance (see CBS Productions Pty Ltd v. O'Neill (1985) 1 NSWLR 601 at 606). 20 Mr Skehill was legally represented at the hearing on a limited basis, in that his Counsel Mr Topfor disclaimed any opportunity to cross-examine or address. He has provided a comprehensive Affidavit containing a great deal of correspondence entered into between himself and his Solicitors on the one hand and the Applicant and her Solicitors on the other hand, and in addition containing his account of the steps he had taken thus far by way of consultation with Ms Firebrace and the other Directors. I am unable to discern from such materials any basis for the criticism of his conduct of this Inquiry as advanced by the Applicant, or of bias or apprehended bias on his part. In the course of submissions, Counsel for Ms Firebrace focused mainly if not essentially upon Mr Skehill's "Chronology of Facts and List of Allegations" bearing date 27 July 2000, which I have earlier identified in paragraphs 3 and 4 of this Judgment. This document has been provided to Ms Firebrace and to each of the directors by an identical letter dated 27 July 2000 of Mallesons Stephen Jaques (Mr Skehill being a solicitor by profession and presently holding the office of Special Counsel within the Canberra Office of that firm) addressed to all of the directors, and in addition to Mr Clark in his capacity as Chairman of the Aboriginal and Torres Strait Islander Commission, the text of which letter reads as follows: "Indigenous Land Corporation Inquiry – Chronology of Facts and List of Allegations In my letter to Directors of 6 July 2000 I stated that I would prepare and provide to each Director a draft chronology of facts and a draft list of allegations made by any or various Director(s) against any other Director(s). I now enclose a draft factual chronology that sets out my understanding of the relevant facts. The chronology is based on documents available to me, meetings I have conducted with all Directors and interviews I have had with other relevant parties. Each Director now has an opportunity to correct or add to the chronology and to provide any additional relevant evidence. Please advise me whether you agree with the facts as stated or consider that there are any errors or missing relevant facts. If you make any claim of error or any assertion of additional fact, please provide a detailed explanatory comment and, if possible, any confirmatory documentation. Having regard to the timeframe in which I have been requested to report to the Minister, I would very much appreciate your response by close of business Friday 4 August 2000. Unless I have heard from you by that date, I shall assume that you regard the draft chronology as complete, and as an adequate and accurate summary of the matters set out in it. Certain matters to which reference is made in the draft chronology are the subject of proceedings currently before the Federal Court. I have not formed any opinion as to the validity or otherwise of any matter or issue that is raised in those proceedings. Nothing in this draft chronology reflects, or should be taken to reflect, any such opinion on my part. Please not that the attached draft is marked confidential. This is for two reasons. First, it is nothing more than a draft on which no Director has yet had an opportunity to comment. Second, the Minister's Terms of Reference specifically provide that "The Inquiry will not be conducted in public". I therefore ask that you observe the confidentiality of this draft. I will shortly forward to you, as soon as I am able, the draft list of allegations to which I referred in my letter of 6 July 2000." 21 The enclosed "Draft Factual Chronology", which bears the date 27 July 2000, contains 368 paragraphs and takes up 45 pages. The conduct of Mr Skehill in preparing and submitting this document to Ms Firebrace (and to her co-directors) constitutes the very antithesis of denial or threatened denial of natural justice or procedural fairness, and does not indicate any fair or viable basis for Ms Firebrace's charges of bias or apprehended bias. Yet it was that conduct on the part of Mr Skehill which comprised the main plank of Ms Firebrace's case against Mr Skehill's administration and against his proceeding further with the Inquiry. I find that none of the purported criticisms of Mr Skehill's conduct and the circumstances related to the content or circulation of that document even remotely support the allegations which Ms Firebrace has advanced against him in these proceedings. To contend, for instance, as do the Applicant's Written Submissions, that the document contains "some 45 pages of random insults… and is biased towards a finding of misconduct against the Applicant", has no justifiable basis whatsoever. 22 Ms Firebrace has presented three Affidavits for the purposes of obtaining the relief she presently seeks at this interlocutory hearing. The first is her Affidavit of 7 August 2000, which mainly contains an account of her engagement by and executive duties undertaken for the Corporation, refers to adverse publicity concerning the Corporation contained in the Sydney Morning Herald publication of 5 February 2000 in relation to which she says she was interviewed by the journalist beforehand, describes the circumstances leading to the rupture of her relationship with Mr Wilson the General Manager (against whom she seeks a variety of injunctions relating to his continuing in office upon a judicial basis I do not understand), makes generalised but in my opinion unsubstantiated allegations partly of a serious nature against other members of the Corporation's board as well as the General Manager, and criticises the terms and scope of Mr Skehill's appointment. Her direct evidentiary references to the Minister in this first Affidavit are seemingly limited for instance to the following narrative: "22. On 24 May 2000 at a meeting in Canberra I conferred with the Minister. He asked me to stand down. I refused. I was determined to see the enquiry through. If two or three people who were directly implicated in the Roebuck Plains transaction were not putting up such fierce resistance there would not be any disharmony on the board and Mr Wilson would have been sacked." Attached to this first affidavit of Ms Firebrace is a great deal of what seems to me to be irrelevant and disconnected documentation, to which the affidavit does not purport to assign any relevant significance, at any rate approaching admissible form. 23 In relation to Ms Firebrace's next Affidavit of 21 August 2000, I observe that the same purports to address Mr Skehill's abovementioned Affidavit and to address a number of matters of detail which do not seem to me to bear in any material or permissible way upon the critical issues which she has raised as to alleged denial (or threat of denial) of procedural fairness or of bias or apprehended bias on the part of Mr Skehill. In so far as Ms Firebrace purports to address the document called "Draft Factual Chronology", and the additional document "Allegations Understood To Be Expressed By Ms Firebrace Against Directors Of The Indigenous Land Corporation", she produced in this second affidavit for the first time a great deal of submissions and commentary in my opinion of substantial irrelevance to the present Application, being a combination of submissions commentary and correction largely of the kind the subject of Mr Skehill's previous invitation to Ms Firebrace to provide direct to him, being an invitation which Ms Firebrace has not yet responded in the way he requested of her. Thereafter this second affidavit provided the following brief piece of evidence purportedly relating to the administrative law issues which she has propounded in this Application. 24 Thus Ms Firebrace deposes as follows: "15. I have not been informed by Mr Skehill of the charges of misbehaviour made against me." In my opinion, Ms Firebrace has provided no basis for the assumption inherent in the presentation of her evidence such as that cited immediately above that charges of misbehaviour have been already made against her by Mr Skehill, or even are proposed by Mr Skehill to be made against her. His assignment is not of course to make or formulate charges, but to make recommendations to the Minister, which the Minister may or may not accept. Indeed it is a matter for fair criticism of the Applicant that she has implicitly impugned Mr Skehill's integrity without foundation upon the footing that he has reached conclusions in advance of her response to the invitation extended to her by his submission of the "Draft Factual Chronology". In the letter of 27 July 2000 sent to all directors along with the Draft Factual Chronology, Mr Skehill states as follows: "I have not formed any opinion as to the validity or otherwise of any matter or issue that is raised in these proceedings. Nothing in this draft chronology reflects, or should be taken to reflect, any such opinion on my part." I have encountered nothing in the evidence to gainsay that assertion. 25 Ms Firebrace next deposes as follows: "16. I have not heard the evidence he has collected and Mr Skehill has not given me the signed statements of the people he has interviewed. He has not given me an opportunity to hear all of the evidence given by the people he has interviewed. He has not given me an opportunity to examine or cross-examine the witnesses." The claim of a right of cross-examination in the Inquiry is plainly misconceived, Mr Skehill does not have the power to require the giving of oral evidence, much less the submission of witnesses to cross-examination : Rose v Bridges (1997) 79 FCR 378. What Ms Firebrace has been provided by Mr Skehill is a highly detailed narrative of events laid out in essentially chronological sequence, being events with which to a large extent she would have been associated. Mr Skehill has adopted the practice of attributing not only the times but also the source of the materials to which he has made reference or set out in this lengthy and comprehensive draft document. The amount of particularity and detail is quite immense, and more than adequately informs Ms Firebrace of matters concerning or involving herself and her purported discharge of the duties and responsibilities of her office, such as to adequately equip her to respond to the presently outstanding invitation of Mr Skehill. As earlier explained, no viable basis in law has been articulated as to any entitlement of Ms Firebrace to examine or cross-examine "the witnesses" whom Mr Skehill is said to have identified in this comprehensive draft document. Nor has any viable basis in law been articulated as to any entitlement in Ms Firebrace "… to hear all of the evidence given by the people he has interviewed". Any such alleged entitlements, if justifiable, would belong to each of the other directors as well, and if exercised by all directors would defeat the purposes of an inquiry of the present kind, or virtually so. 26 Paragraph 17 of Ms Firebrace's second affidavit then states as follows: "17. At my only meeting with Skehill I was requested to provide only a brief "mapping of background issues". The meeting covered general events up to March, 2000 only. Skehill undertook to address subsequent events and matters that I wished to present to the Inquiry at a further meeting which has not occurred. In relation to my observation of Skehill's bias toward other directors, at my meeting with Skehill, Graeme Sinnott and I mentioned the fact that I had two legal opinions supporting the validity of telephone meetings as a bona fide style of Board meeting. This was raised in context of the suspension of Mr John Wilson. Skehill immediately (and uncharacteristically, given his demeanour throughout the balance of our meeting) responded in a very stern voice "Not necessarily; I wouldn't be too sure of that". From his demeanour words and conduct it was apparent that Mr Skehill held a firm view that the suspension of Mr Wilson was wrong and that I was guilty of misbehaviour." To propound that "firm view" on such insubstantial basis is self-evident. Moreover the fact that Ms Firebrace has had only one meeting with Mr Skehill is her own doing. Mr Skehill's letter to her and her co-director of 27 July 2000 states as follows: "Each director now has an opportunity to correct or add to the chronology and to provide any additional evidence. Please advise me whether you agree with the facts as stated or consider that there are any errors or missing relevant facts. If you make any claim of error or any assertion of additional fact, please provide a detailed explanatory comment and, if possible, any confirmatory documentation." Ms Firebrace has not responded to that invitation, being an invitation which cannot in my view be criticised. Mr Skehill in his Affidavit speaks of initially arranging a meeting with Ms Firebrace at her home in Victoria to be held on 23 June 2000, which Ms Firebrace subsequently cancelled for the reasons she set out in a letter of 21 June 2000 to Mr Skehill. Such reasons included the absence of a response of the Minister to her requests for amendments to the Terms of Reference, the absence of any "details of allegations levelled at me personally", the hindrance she was experiencing in preparing for the Inquiry by reason of withdrawal of "all personal staffing support and other facilities withdrawn by the ILC Board", the non-recept of her proposal for legal representation for all directors for the purpose of the Inquiry, and the guarantee at the outset of "Written Immunity from claims for personal damages arising from the evidence presented to the Inquiry". Subsequently a meeting did occur at Ms Firebrace's home in Victoria on 23 June 2000 involving Mr Skehill and his assistant to the Inquiry, Ms Smith of Mallesons Stephen Jaques, and Ms Firebrace and her husband Mr Sinnot. Mr Skehill deposes that he said at that meeting as follows: "… this meeting is just part of the first fact-finding stage of the Inquiry. I will be speaking to all the Directors of the ILC to hear directly from each person what they understand the facts to be, so I can establish the facts as accurately as possible before I prepare a draft of my report to the Minister. … I expect there will be a further opportunity for discussion between us. I will ensure that no part of the draft report that contains any criticism of any individual is finalised before that individual has ample opportunity to comment on that criticism. … I suggest you prepare a list of the allegations you wish to make against other Directors and, for every allegation, the evidence you would give in support. … I intend this will not be our only opportunity to discuss relevant matters and I expect that there will be further correspondence and meetings between us. Please feel free to contact me at any time you wish if there is any matter at all that you want to discuss." 27 On 6 July 2000 Mr Skehill wrote to each director detailing with considerable precision the process which he thereafter proposed for adoption. The response of Ms Firebrace was the filing of the present Application on 30 June 2000 for injunctions and orders. She has not responded to the invitation extended by Mr Skehill to her at the meeting, and has not denied that he did extend the same. The Notice of Motion for interlocutory relief was not taken out until 21 August 2000. 28 I have reached the conclusion that what appears in paragraph 17 of Ms Firebrace's second affidavit above extracted provides no footing for an interlocutory injunction, in the light of the events which have uncontroversally occurred. The concluding observation deposed to by Ms Firebrace in the last sentence of paragraph 17 is far too tenuous to attract the Court's intervention, particularly in the light of all of the matters which I have reviewed in this segment of the Judgment. 29 Ms Firebrace's second affidavit next states as follows: "18. I have not been given sufficient time and resources to investigate and respond to the "Draft Factual Chronology" containing some 45 pages." As above stated however, the Draft Factual Chronology had been dispatched to all Directors including Ms Firebrace under cover of Mr Skehill's letter of 27 July 2000. On 2 August 2000, Ms Firebrace responded on the Corporation's letterhead in her capacity as Chairperson in the following excessive and in my opinion unprovoked language, and suggested 18 August 2000 as the time for submission of her response. "INQUIRY INTO THE BEHAVIOUR OF THE DIRECTORS OF THE INDIGENOUS LAND CORPORATION I write in relation to your letter of 27 July 2000, received on Monday 31 July 2000, which detailed a "Chronology of Facts" with respect to this matter. From the outset I must state that in all my 30 years of working experience I have never seen such a chronology of lies, distortions, misrepresentations, hearsay, selective reporting and omissions, and unsubstantiated allegations – all presented in a biased and unbalanced manner that, I can only conclude, seeks to serve a pre-determined end. There are many statements of "facts" and comments from parties to this inquiry that are inaccurate – indeed patently untrue, which in other circumstances, would give rise to action being taken for defamation. It is clear that I have become the major focus of this injury, notwithstanding the Minister's intention that all directors' behaviour be subject to the inquiry. Perhaps this is indicative of the limited Terms of Reference of which I have complained previously. It is distressing that other parties have been given the opportunity to comment on matters that are subject to this inquiry, whereas my input has been limited to providing background mapping only – and then only in respect of events up until the time of early March. There are numerous matters that I wish to challenge, however, the enormity of the task will preclude me from meeting you timeframe of this Friday. I have both official and private obligations, and related travel requirements, that will take me away from the office for most of the next seven working days. Analysis of your chronology is something that cannot be delegated and thus will require my personal attention. I suggest we work to a date of Friday 18 August for submission of my response. If that means extending the date for reporting to the Minister, then so be it; natural justice must prevail. I can only reiterate my condemnation of the contents of your document and my disgust at the vein in which the material has been presented. On another matter, I note that at paragraph 332 of the document – concerning Terms of Reference for the Street Inquiry – contrary to the Minutes of ILC Board Meeting of 6 June 2000 and subsequent advice from the ILC, the said Terms were not resolved at the Board Meeting of 6 June. Rather, your report indicates they were constructed two to three days later (without referral to the Chairman or clearance from Director Gordon) and "incorporated" into the Minutes. I would be grateful if you could alert Sir Laurence Street to these circumstances, including the apparent falsification of the Minutes, as he has been lead to believe the Terms of Reference were resolved unanimously at the June Board Meeting." I am unable to accept the contention as to insufficient time for response. It was Ms Firebrace's choice to respond instead by commencement of the present proceedings and by the affidavits she has presented. The third Affidavit filed in support of the Applications was that of the Solicitor for the Chairman of the Corporation containing some documentary material which in the context of what I have already written requires no examination in this Judgment. The substance of the material is a Corporation Board resolution disclosing that the Board is continuing to function in the context of the Inquiry. 30 There is one final piece of evidence which I would now address, particularly in the light of the substantial emphasis placed upon the same in the address of Counsel for Ms Firebrace. In paragraph 13 of Ms Firebrace's Affidavit, the following appears: "13. On or about 10 August 2000 I received a letter from Graeme Campbell in which he related his discussions with Mr Max Moor-Wilton, (the Secretary to the Department of Prime Minister and Cabinet which I understand nominated Mr Skehill) concerning what the result of the enquiry would be. I verily believe that the contents of that letter to be true." 31 The attached letter of Mr Graeme Campbell reads as follows: "Dear Sharon the following is my recollection of a phone conversation that I had with Mr Maxmore Wilton on June the 13th. It is reconstructed from diary notes that I made at the time. I am prepared to put it in the form of a statutory declaration if required. I spoke with Mr Maxmore Wilton, The head of Prime Minister and Cabinet on phone 02 6271 5111. My reason for phoning was my concern about the way Sharon Firebrace who had been appointed to the part time position of Chairman of the Indigenous Land Council was being treated. Maxmore Wilton told me that Sharon Firebrace "had really f… up". He said "She was in to every rort just like all the other blacks and she was out to get what she could for her self". When I pressed him for examples of the alleged rorts he sited travel expenses and the sacking of the previous general manager who she had employed then sacked and paid him out the full value of his contract. He told me he was "100% opposed to her". He told me "She was a terrible embarrassment to the minister and a bitter Disappointment". He also said. "She will be done like a dinner when the results of the inquiry are known. The press will get her". As the inquiry had not yet commenced, he seemed very pre-emptive about the outcome. This seemed both odd and ominous." The material is of course hearsay so far as the presently constituted proceedings are concerned, and whatever Mr Maxmore Wilton is reported to have said to Mr Campbell is of course no evidence as to the state of mind or intentions of Mr Skehill, or for that matter of the Minister or any of the directors of the Corporation. I can well understand Ms Firebrace's concern as to the contents of the material, but I am clearly of the view that the same provides no viable or adequate basis for any reasonable apprehension of bias on the part of Mr Skehill as the person charged with the conduct of the Inquiry and with the authorship of the proposed report. Moreover the Minister has not been joined in the proceeding as a defendant against whom relief is sought or otherwise, and if he had been so joined, the material would not constitute evidence against him. Notwithstanding the submission of Ms Firebrace's Counsel, the status and import of the document is plainly distinguishable from the Senior Public Servant's "off-the-record" briefing of a journalist in relation to the inquiry he was conducting in the circumstances explained in the Judgment of the Full Federal Court (Beaumont, O'Loughlin and Lehane JJ) in Gaisford v Hunt (unreported 6 December 1996). In the result I have formed the opinion that Mr Campbell's note to Ms Firebrace does not comprise any evidence at all for the grant of the interlocutory relief presently sought against the Respondents. 32 In paragraph 3 and 4 of the Judgment, I had set out a summary of the basis for the Applicant's contentions firstly as to bias or apprehended bias and secondly as to denial of natural justice. My subsequent examination of the evidence adduced at this interlocutory hearing has not informed me of any sufficient viability in or support for such catalogue of complaints. The grounds propounded for interlocutory relief are in my opinion at best weak and deficient in terms of legal viability. I would therefore dismiss this Interlocutory Application. I certify that the preceding thirty-three (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti J. Associate: Dated: 5 September 2000 Counsel for the Applicant: Mr L Stephens Solicitor for the Applicant: National Aboriginal and Torres Strait Islanders Legal Services Secretariat Limited Counsel for the First and Second Respondents: Dr J Griffiths Solicitors for the First and Second Respondents: Minter Ellison Solicitor for the Third Respondent: Mallesons Stephen Jaques Counsel for The Commonwealth of Australia (Intervening) Mr C Erskine Date of Hearing: 1 September 2000 Date of Judgment: 5 September 2000