Ferguson v Cole [2002] FCA 1411 (includes explanatory statement)

FEDERAL COURT OF AUSTRALIA

Ferguson v Cole [2002] FCA 1411 ADMINISTRATIVE LAW – Royal Commission into the building and construction industry – production of an interim report by the Royal Commissioner – pre-judgment bias – whether Royal Commissioner displayed actual bias towards the applicants – whether report of the Royal Commissioner gave rise to apprehended bias – duty to ensure that persons should know of the risk of adverse findings being made against them - whether the applicants given sufficient opportunity to adduce material in response that might have deterred adverse findings from being made – whether the report contained findings adverse to the applicants in a sufficiently individual, direct and immediate way to give rise to duty – whether later statements of the Royal Commissioner about the meaning of the report relevant to consideration of actual and apprehended bias ADMINISTRATIVE LAW – Royal Commission into the building and construction industry – procedures adopted by Royal Commission– whether Royal Commission complied with requirements of procedural fairness – whether Royal Commissioner displayed actual bias towards the applicants – whether conduct of the Royal Commission gave rise to apprehended bias on the part of the Commissioner – role of Counsel Assisting the Royal Commissioner - whether the applicants given sufficient opportunity to adduce material in response to material adverse to them – alleged restriction of cross-examination and unfair questioning of witnesses ADMINISTRATIVE LAW – Royal Commissions – role of the Court in reviewing the conduct of Royal Commission

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6 Judiciary Act 1903 (Cth) s 39B

Kingham v Cole [2002] FCA 45 cited McGuinness v Attorney‑General of Victoria (1940) 63 CLR 73 cited Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 cited Mahon v Air New Zealand Ltd [1984] 1 AC 808 cited Annetts v McCann (1990) 170 CLR 596 referred to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 considered Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; 190 ALR 402 cited Kennedy v Lovell [2002] WASCA 21 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 cited Livesey v New South Wales Bar Association (1983) 157 CLR 288 cited Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 cited Johnson v Johnson [2000] HCA 48; 201 CLR 488 cited Re Polites; Ex parte The Hoyts Corporation Pty Limited (1991) 173 CLR 78 cited Shrubb v Air Pilots' Guild of Australia (FC) (1979) 40 FLR 374 cited Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537 referred to Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 referred to Re JRL: Ex parte CJL (1986) 161 CLR 342 referred to Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 cited ANDREW FERGUSON (and others according to the schedule of applicants) v TERENCE RHODERIC HUDSON COLE AND THE COMMONWEALTH OF AUSTRALIA N 912 of 2002 BRANSON J 20 NOVEMBER 2002 SYDNEY