Re Alan Bond; Bond Media Limited; Bond Corporation Holdings Limited; Queensland Television Limited; Consolidated Broadcasting System (Wa) Pty Limited; Northwest Radio Pty Limited and Darwin Broadcasters Limited v Australian Broadcasting Tribunal [1988] FCA 349 (6 October 1988)

FEDERAL COURT OF AUSTRALIA

Re: ALAN BOND; BOND MEDIA LIMITED; BOND CORPORATION HOLDINGS LIMITED;
QUEENSLAND TELEVISION LIMITED; CONSOLIDATED BROADCASTING SYSTEM (WA) PTY
LIMITED; NORTHWEST RADIO PTY LIMITED and DARWIN BROADCASTERS LIMITED
And: AUSTRALIAN BROADCASTING TRIBUNAL
No. NSW G989 of 1988
Broadcasting and Television
19 FCR 494

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)

CATCHWORDS

Broadcasting and Television - Inquiry by Australian Broadcasting Tribunal - Questions as to the suspension or revocation of licences or the imposition of conditions - Nature of inquiry - Whether Tribunal bound to furnish, or to cause to be furnished, detailed particulars as to allegations and possible orders - Witnesses associated with licensees but required by counsel assisting to give evidence - Whether counsel for licensee entitled to determine order in which witnesses will be called and to lead their evidence in chief.

Broadcasting Act 1942 ss.17C, 25, 80A.

HEARING

SYDNEY
6:10:1988

Counsel for the Applicant: Mr A B Shand QC with Mr P M Wood

Solicitors for the applicants: Blake Dawson Waldron

Counsel for the Respondent: Mr R J Burbidge QC with Mr P Roberts

Solicitor for the Respondent: Australian Government Solicitor

ORDER

The Application be dismissed.

The applicants pay to the respondent its costs of the proceeding, including the costs incurred at the hearing before Morling J on 23 and 25 August 1988.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This application raises questions relating to the conduct by the Australian Broadcasting Tribunal, the respondent, of an inquiry under s.17C(1) of the Broadcasting Act 1942. Section 17C(1) provides:
"17C. (1) Where the Tribunal receives an

application under this Act requesting the exercise of
any of its substantive powers, or proposes to exercise
any of its substantive powers otherwise than on such an
application, the Tribunal shall hold an inquiry into the
requested or proposed exercise of the power."

2. Amongst the substantive powers of the Tribunal are powers "to vary, revoke or impose a condition of a licence ..." and "to suspend or revoke a licence ...": see s.17A(2)(c) and (d).

3. The applicants, Alan Bond, Bond Media Limited, Bond Corporation Holdings Limited, Queensland Television Limited, Consolidated Broadcasting System (WA) Pty Limited, Northwest Radio Pty Limited and Darwin Broadcasters Limited, are persons who hold, or are associated with the holders of, licences under the Broadcasting Act.

4. The applicants have all been represented in the inquiry. In connection therewith they raise three questions for determination by the Court: whether the Tribunal is bound to furnish to the applicants further particulars of the subject matter of the inquiry, and whether the Tribunal is bound to permit counsel for the applicants, firstly, to determine the order in which six witnesses who are associated with the applicants shall be called to give their evidence to the inquiry and, secondly, to take the evidence in chief of those witnesses.
The history of the inquiry

5. At a meeting held on 5 February 1988 the Tribunal decided to hold an inquiry in order to investigate certain comments made by Mr Bond in an interview with Ms Jana Wendt in relation to a defamation settlement made with the former Premier of Queensland by Bond Corporation. Notice of this decision was given by letter to Bond Media, the letter indicating that issues for the inquiry were being settled and would be forwarded when finalised.

6. On 2 March 1988 the Tribunal issued a notice stating that it had commenced an inquiry "into issues relating to the following commercial radio and television licences owned by companies associated with Mr Alan Bond". One television licence and five commercial radio licences were then identified. The notice proceeded:

"This inquiry follows the viewing by the
Tribunal of an unedited tape of an interview
given by Mr Alan Bond on the program 'A
Current Affair' on 22 January 1988. The
Tribunal also examined the transcript of the
last QTQ-9 renewal.
The issues which will be addressed during the
inquiry are as follows:
1. Whether anything connected with the
payment of $400,000 in settlement of a
defamation action by Sir Joh
Bjelke-Petersen against Queensland
Television Limited has any implications
as to the suitability of companies
associated with Mr Alan Bond to hold the
above broadcasting licences. In this
context it will be considered whether Mr
Bond and companies associated with him
are fit and proper persons to hold the
above licences.
2. Whether it would be advisable in the
public interest for the Tribunal to do
any of the following:
(a) suspend any of the said licences
associated with Mr Bond;
(b) revoke any of the said licences;
(c) impose or vary conditions on any of
the said licences.
3. Such other matters relevant to the
inquiry as the Tribunal sees fit."

After referring to other television and radio licences held by companies associated with Mr Bond, the notice invited submissions upon the issues.

7. Following the publication of this notice there was considerable correspondence between Messrs Blake Dawson Waldron, the solicitors for the present applicants, on the one hand, and the Tribunal and the Australian Government Solicitor, acting on behalf of the Tribunal and instructing counsel assisting the Tribunal in its inquiry, on the other. It is necessary only to refer to that part of the correspondence which touches on the matters falling for present determination.

8. On 9 March 1988, in response to an inquiry, the Tribunal advised Blake Dawson Waldron that the issue of the suitability of companies associated with Mr Bond to hold the relevant licences was "not limited to the question of fitness and propriety but may encompass other questions such as management capabilities".

9. On 11 April 1988 Blake Dawson Waldron sent to the Tribunal a submission dealing in some detail with the matters referred to in the Tribunal's notice.

10. On 22 April, in response to a further letter from Blake Dawson Waldron, the Australian Government Solicitor advised, amongst other things:

"1. The Tribunal will consider any issues
bearing on the suitability of the
companies associated with Mr Bond to hold
the relevant broadcasting licences which
evidence before it connected with the
payment of $400,00 in settlement of the
defamation action raises.
2. It is anticipated that the question of
suitability raised by the Notice of
Inquiry will be determined by a
consideration of the conduct of those
persons within the licensee companies
involved in the settlement of the
defamation action, both in relation to
that action and subsequently. The
Tribunal will also consider evidence
given by those persons to the Tribunal in
earlier hearings and if appropriate,
whether such actions as the evidence
discloses taken with earlier findings of
the Tribunal constitute a pattern of
conduct. The Tribunal will consider the
implications of its findings on these
matters."

The letter also included the names of eight witnesses who were expected to give evidence, including Mr Bond.

11. On 5 May 1988 the Australian Government Solicitor wrote a letter to Blake Dawson Waldron in which, "(i)n an effort to assist you", he set out "the issues which counsel assisting the Tribunal currently perceives to arise within the issues nominated by the Notice of Inquiry". As slightly amended one week later, those issues were:

"1. Mr. Bond's belief as to the truth or
substantial truth of the story broadcast
on 2 February 1983 on QTQ 9, Brisbane,
and the basis or bases of that belief.
2. Whether there were facts concerning the
truth of the story of which Mr. Alan Bond
was unaware and whether Mr. Bond took
reasonable steps to acquaint himself with
those facts.
3. Whether the defamation action instituted
by Sir Joh Bjelke-Petersen in consequence
of that story was being actively
prosecuted by him prior to the
acquisition of QTL by a company
associated with Mr Bond.
4. The advice possessed by QTL and its
defamation insurers as to prospects of
success and/or extent of potential
damages in relation to the defamation
action.
5. The nature of the conversations between
Sir Joh Bjelke-Petersen and Mr. Bond, or
persons associated with Mr. Bond,
touching upon the defamation writ.
6. Whether those conversations amounted to a
demand by Sir Joh for settlement of the
defamation writ having regard to factors
other than the legal merits of the
defamation action.
7. The circumstances of Sir Edward Lyons'
and Mr. Peter Gallagher's appointment to
the QTL Board.
8. Sir Edward Lyons' disclosure to the QTL
Board of his knowledge of an involvement
in the facts which contributed the basis
for the story broadcast on 2 February
1983.
9. Whether Sir Edward Lyons raised the
subject of the Bjelke-Petersen writ while
a member of the QTL Board, and if so far
(sic) what purpose.
10. The advice taken by Mr. Bond as to the
appropriateness of the settlement reached
with Sir Joh Bjelke-Petersen.
11. The extent of inquiry made by Mr. Bond
into the likely level of damages were QTL
to fail in its defence of the defamation
action.
12. The sum paid by way of settlement of the
defamation action and the person who paid
that sum.
13. The extent to which QTL Board members
were kept aware of the settlement
negotiations and their outcome.
14. The meaning to be ascribed to Mr. Bond's
remarks made to Ms. Jana Wendt,
particularly in relation to evidence
given by Mr. Bond before the Tribunal in
1986.
15. The circumstances in which the programme,
which had originally broadcast the story
on 2 February 1983, was terminated by QTQ
management.
16. The circumstances surrounding the
non-broadcast on 22 January 1988 on the
programme 'A Current Affair' of a segment
of an interview between Mr. Alan Bond and
Ms. Jana Wendt which had been broadcast
on 21 January 1988 as a promotion for the
programme to be broadcast on 22 January
1988."

12. Blake Dawson Waldron responded to the letter of 5 May 1988 by asking for "proper particulars" of the topics listed in this letter. To that letter the Australian Government Solicitor replied on 6 May 1988:

"I remind you that the Tribunal's Inquiry is
not in the nature of ordinary litigation.
There is no question of presenting a 'case'
against your client. The essence of the
Inquiry is the knowledge that the
Bjelke-Petersen defamation action was settled
for a substantial sum, that Mr Bond earlier
gave evidence thereon to the Tribunal and then
subsequently made certain comments in relation
to the settlement to Ms Jana Wendt.
What the Inquiry will look at is whether in
all the circumstances surrounding those
events, a particular conclusion should be
drawn. In this regard, neither I nor Counsel
assisting the Tribunal have any views
whatever.
'Particulars' of any issues will emerge as the
Tribunal's preliminary investigations unfold
and in the course of evidence given by
witnesses at the Inquiry."

13. The hearing by the Tribunal apparently commenced about 9 May 1988. After evidence had been taken over a period of about two weeks, there was a flurry of activity regarding the matters presently before the Court. On 24 May, Blake Dawson Waldron wrote a letter to the Australian Government Solicitor seeking the following further particulars:

"1.Which substantive powers are proposed to
be exercised by the Tribunal?
2.Please identify each person or
corporation who it will be alleged or
suggested are not fit and proper persons
to hold a broadcasting licence.
3.Please state in respect of
(a) Mr. Bond, and
(b) each person referred to in 2 above,
in which manner or respect each such
person is not a fit and proper person to
hold a broadcasting licence.
4.Please state the facts and material
relied upon to support the allegations or
suggestions that each such person is not
a fit and proper person.
5.Please state the terms of any conditions
which it will be proposed should be
imposed on any licence.
6.Please identify each person or
corporation who it will be alleged or
suggested does not have the requisite
management capability.
7.Please state in respect of
(a) Mr. Bond, and
(b) each person referred to in 2 above,
in what manner or respect such person
does not have the requisite management
capability.
8.Please state the facts and material
relied upon to support the allegation or
suggestion that each such person does not
have the requisite management capability.
9.Please confirm that the 'suitability'
referred to in the Notice of Inquiry
refers only to fitness and propriety and
the requisite management capability."

The solicitors asked that these particulars be provided "before Mr. Bond and witnesses associated with the licensee companies give evidence".

14. The Australian Government Solicitor replied to this letter on the following day by stating that the issues remained those set out in the Notice of Inquiry and that the "factual issues perceived to arise by Counsel Assisting within these general issues" were as set out previously. But five additional issues were added and the writer went on to mention two matters which the Tribunal "may need to consider" in the event that "adverse findings fall to be made against Mr Bond on issues".

15. On the same day, at the hearing, senior counsel for the applicants raised the question of his leading evidence from certain witnesses. Also on 25 May, the Australian Government Solicitor dealt with this matter in a letter to Blake Dawson Waldron by saying:

"It is my view and the view of Counsel
Assisting the Tribunal that the conduct of
proceedings before the Tribunal is in the
hands of Counsel Assisting, and it follows
that both the order of witnesses and the
taking of their evidence in chief are matters
for determination by Counsel Assisting.
I have considered your request that you take
certain witnesses in chief, and advise that
Counsel Assisting are agreeable to your taking
the following witnesses in chief:-
Mr. Bond Mr. Lodge
Mr. Aspinall Mr. Beckwith
Mr. Jones Mr. Coppin"

Each of the six named persons, I am informed, is associated with one or more of the Bond companies, as a director, employee or consultant.

16. Blake Dawson Waldron responded to these two letters by a single letter, also dated 25 May, which read as follows:

"1.As to the 2 page letter dealing with
witnesses
Subject to any directions by the
Tribunal, Counsel for our clients propose
to take in chief all of the witnesses
necessary for the presentation of our
clients' case, including those relating
to 'the matter of the promotional
material'. Unless the Tribunal otherwise
directs, the order of those witnesses is
a matter for our Counsel although, of
course, they will consult with Counsel
Assisting as to matters of mutual
convenience.
In accordance with the Tribunal's usual
procedures, we will provide the Tribunal,
the parties and Counsel Assisting with a
list of witnesses whom we propose to
call, the order of witnesses and copies
of statements of witnesses as soon as is
practicable prior to the witnesses being
called.
2.As to the 3 page letter dealing with
particulars
This letter does not provide a
satisfactory answer to our numerous
requests for particulars.
We propose to raise each of these matters
before the Tribunal tomorrow before any
further evidence is given. We confirm the
suggestion made between Counsel that it may
save inconvenience if further witnesses were
not brought before the Tribunal until these
matters are resolved."

17. Counsel did in fact raise the matters at the hearing. On 26 May the Tribunal was asked to make certain directions. Those directions included a direction that counsel assisting provide the particulars sought in the letter of 24 May from Blake Dawson Waldron to the Australian Government Solicitor and directions that counsel for the present applicants "may take in chief the evidence of all witnesses whom they propose to call" and that "subject to questions of convenience" those counsel "may determine the order of witnesses whom they propose to call". The Tribunal heard argument in respect of these directions. Upon the following day the Chairman announced the Tribunal's decision. In connection with the matter of particulars the Chairman said:

"Having examined all of the correspondence and
the Notice of Inquiry we do not consider it
appropriate to make the direction sought as it
is our view that the Australian Government
Solicitor's letter of 25 May 1988 does give
the particulars sought in the licensees'
solicitor's letter of 24 May 1988. We do wish
to add, however, that in so far as the
Australian Government Solicitor's letter of 25
May 1988 purports to set out the present
thinking of the Tribunal, it does so
accurately. We have not formed any intent to
exercise any of our substantive powers under
the Broadcasting Act 1942 in a manner adverse
to the licensees. Should that position change
we shall inform the licensees before finally
deciding whether to exercise any of our powers
giving the licensees adequate opportunity to
place material before us and to make
submissions."

18. In relation to the six witnesses referred to in the letter of 25 May, the Chairman said:

"As to the order of examination of any
particular witness, as there is no objection
by any party to Mr. Shand's first examining
those witnesses, we are content to give effect
to the agreement that has been reached. No
direction is therefore necessary.
As to the order of witnesses, it is our ivew
that that matter should generally be
determined by Counsel Assisting, at whose
instance these six witnesses are to be called.
As Counsel Assisting has indicated that he
wishes that the aforementioned six witnesses
be examined in a particular order, and as we
can see no unfairness to any party in those
persons giving evidence in that order, we
decline to give the direction sought by Mr.
Shand QC."

19. Being dissatisfied with these rulings, the applicants immediately instituted the present proceeding. The Tribunal then adjourned the inquiry.
The present proceeding

20. The Application came before Beaumont J on 31 May 1988. His Honour made interim orders, including an order restraining the Tribunal, until further order, from holding the inquiry. Beaumont J. expedited the final hearing of the matter.

21. The final hearing proceeded before Morling J on 2 and 3 June 1988. At that time counsel for the applicants amended the Application, which had previously been concerned solely with the matters of particulars and of witnesses, so as to challenge the validity of the inquiry itself.

22. In a decision handed down on 10 June 1988, Morling J held that the inquiry was invalid. Consequently, his Honour did not deal with the more limited matters upon which the applicants had originally approached the Court. But his Honour's decision as to invalidity was reversed in a decision of a Full Court given on 10 August 1988. Amongst other orders, the Full Court remitted the matter to the trial Judge, or other Judge of the Court, to determine the questions that remained in the proceeding. Unfortunately, although his Honour heard some further argument in the matter, Morling J was not available to dispose of the matter within an acceptable period of time. Accordingly, I was asked to deal with the matters still outstanding.

23. In the meantime, on 25 August 1988, Blake Dawson Waldron forwarded further letters, both to the Australian Government Solicitor and to the Tribunal itself, seeking the following particulars:

"1.Please identify each person or
corporation who is presently in
contemplation as not being fit and proper
to hold a broadcasting licence.
2.Please state in respect of-
(i) Mr Bond; and
(ii) each person referred to in (1),
in which manner or respect each person is
contemplated by the Tribunal as not being
a fit and proper person to hold a
broadcasting licence.
3.Please state the conduct which it is
contemplated the Tribunal may suggest
that each such person is not a fit and
proper person.
4.Please state the terms of any conditions
which it is contemplated could be imposed
by the Tribunal on any licence.
5.Please identify each person or
corporation whom it is contemplated may
not have the requisite management
capability.
6.Please state in respect of -
(i) Mr Bond; and
(ii) each person referred to in (1)
above,
in what manner or respect such person may
not have the requisite management
capability.
7.Please identify the conduct which it is
contemplated may suggest that each such
person does not have the requisite
management capability.
8.Please identify the conduct which it is
contemplated may suggest that Mr Bond and
others in 1986 made a concerted attempt
to persuade the Tribunal flasely that the
payment of $400,000 was made in
consequence of a genuine belief on the
part of those persons that that sum was a
proper and justified amount to pay in
settlement of Sir Joh Bjelke Petersen's
defamation action.
9.Please identify the evidence given to the
Tribunal in 1986 which the Tribunal
contemplates may have been less than
candid and honest.
10.Please specify the respect in which Mr
Bond and those associated with him are
contemplated as not having displayed the
requisite standards of candour and
honesty required of the holders of public
broadcasting licences in the giving of
the evidence to the Tribunal during the
hearing into the renewal of licences in
1986.
11.Please give particulars of the conduct on
the part of Mr Bond that the Tribunal
contemplates may have constituted a
pattern of conduct such as to require
action by the Tribunal in relation to the
radio and television licences held by
him."

24. The Australian Government Solicitor responded on 31 August:

"Thank you for your letter of 25 August 1988.
In that letter you seek, in effect, to
interrogate the Australian Broadcasting
Tribunal ('the Tribunal'). In my view and
that of the Tribunal it is inappropriate for
you to seek to interrogate the Tribunal.
I have advised the Tribunal that the
requirements of natural justice do not impose
any obligation on the Tribunal to provide
'particulars' of the nature sought in your
letter. This view is consistent with the
judgment of the Full Federal Court in Bond v
ABT (G 1030/1988).
I am instructed that the Tribunal has not
formed any views as to the facts under
investigation and has formed no conclusions as
to the likely outcome of the inquiry."

Subsequently, the Australian Government Solicitor confirmed that the Tribunal had made a decision not to supply these particulars.

25. Before dealing with the substance of the matter, I should say that I was informed by counsel that an application has been made, on behalf of the present applicants, to the High Court of Australia for an order granting special leave to appeal to that Court against the decision of the Full Court upon the question of invalidity. I thereupon discussed with counsel the question whether it was desirable for me to postpone determination of the present problems until after the completion of proceedings in the High Court. However, I was asked by counsel for both parties not to take this course. The present intention of the Tribunal, subject to what may in the meantime happen in the High Court, is to resume the hearing on 17 October 1988. Consequently, it is thought desirable that the remaining questions raised by the Application be resolved as soon as possible, in order that the Tribunal may take any action necessary to comply with the Court's orders in good time before 17 October. Although there is a measure of inconvenience in taking the course requested by counsel, in the sense that anything I say may have to be reconsidered in the light of any observations made by the High Court relating to the nature of the inquiry, I think that, on balance, I ought to take the course sought by counsel; the more especially because that course is urged on behalf of both parties and by counsel having an intimate knowledge of the history of the inquiry and the matters under investigation by the Tribunal.
Some fundamental propositions

26. Before turning to the particular matters in relation to which orders are sought, I note five propositions relating to the exercise upon which the Court is engaged. The first four of these propositions are uncontroversial. But as each is of fundamental importance it is desirable to set them out.

27. Firstly, in undertaking the subject inquiry, the Tribunal is bound by the common law principles of natural justice. The Tribunal is empowered, by the Broadcasting Act, after inquiry, to make orders adversely affecting one or more of the various licences referred to in the Notice of Inquiry. Those are licences in which the applicants, of some of them, have interests. The value of those interests may be adversely affected -- perhaps very significantly -- by any exercise of the power. The present case is covered by the principle enunciated by Mason J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at p 582:

"It is a fundamental rule of the common law
doctrine of natural justice expressed in
traditional terms that, generally speaking,
when an order is to be made which will deprive
a person of some right or interest or the
legitimate expectation of a benefit, he is
entitled to know the case sought to be made
against him and to be given an opportunity of
replying to it: ... The reference to 'right
or interest' in this formulation must be
understood as relating to personal liberty,
status, preservation of livelihood and
reputation, as well as to proprietary rights
and interests."

See also FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342, a case where the question of renewal or non-renewal of an insurance licence was under consideration.

28. Secondly, and supplementing the common law obligation described by Mason J, there are two statutory provisions directly applicable to the present case. The first is s.25 of the Broadcasting Act which reads:

"25. (1) The Tribunal shall, without regard to
legal forms and solemnities, make a thorough
investigation into all matters relevant to an inquiry
under this Division, and may give all such directions
and do all such things as the Tribunal considers are
necessary or expedient for the expeditious and just
hearing of the inquiry.
(2) The Tribunal is not bound by legal rules of
evidence and may inform itself on any matter in such
manner as it thinks fit.
(3) Subject to section 19, the Tribunal shall
ensure that every party to proceedings before the
Tribunal at an ordinary inquiry is given a reasonable
opportunity to present his or her case."

Nothing in s.19 -- which requires public hearings, subject to some provisions regarding confidential information -- affects the application of s.25(3) to the present case.

29. The second statutory provision is s.80A which reads:

"s.80A. In the performance of its functions under
this Part, the Tribunal shall act fairly and impartially
and shall observe the rules of natural justice."

Section 80A is included in Part IIIB of the Act, dealing with licences. That Part includes ss.85, under which section licence conditions may be varied or revoked or further conditions imposed, and s.88, which section authorizes the Tribunal to suspend or to revoke licences.

30. Thirdly, an inquiry instituted by the Tribunal under s.17C(1) of the Broadcasting Act is inquisitorial in character. The inquiry is initiated either by an application, under s.17B of the Act, made by a person seeking that the Tribunal exercise a substantive power, or else by a proposal -- in the sense identified in the Full Court decision in this case -- for such exercise emanating from within the Tribunal itself. In either case the question falling for consideration at the inquiry is the desirability of exercising the relevant power. In some cases, one or more licensees may have a direct, particular and pressing concern with the question whether that power should be exercised; in other cases, for example where some general determination is to be made, the outcome may not be a matter of great moment to any licensee. But regardless of the category into which a given inquiry falls, it retains its character as an investigation by the Tribunal into the desirability of its taking a particular course of action. Whatever the private interests at stake, an inquiry is never inter partes litigation: see The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at p 33.

31. Fourthly, this Court is entitled to intervene in relation to an inquiry conducted by the Tribunal only in a case in which it appears that the Tribunal has fallen, or is likely to fall, into legal error; giving to the term "legal error" a connotation sufficient to include each of the grounds referred to in the Administrative Decisions (Judicial Review) Act 1977. Except to the extent that such an error is shown, it is for the Tribunal to perform its functions in its own way free of any interference by this Court.

32. In recognition of this fourth proposition, the applicants have sought to bring their case within various grounds for relief set out in the Administrative Decisions (Judicial Review) Act. I will identify each of the grounds relied upon in discussing each of the topics falling for consideration.

33. The final proposition is contentious. Counsel for the applicants suggest that, although an inquiry under s.17C(1) starts life as an inquisitorial proceeding, it subsequently becomes adversarial in character. This metamorphosis occurs, counsel submit, when witnesses associated with a party potentially adversely affected by the Tribunal's decision are about to give their evidence. At that point, say counsel, procedures commonly associated with inter partes litigation, such as the supply of particulars of allegations, become appropriate.

34. I see difficulties about this submission. In the first place, it assumes that it will always be possible, during the hearing, to chart the course of possible disadvantage in the outcome. There is no problem about this in a proceeding, such as the present, dealing with the fitness of a particular licensee. But in an inquiry, under s.17C(1), which deals, for example, with the determination of program standards, there may be many people, licensees and others, whose interests are potentially affected, for better or for worse and perhaps significantly, by particular outcomes. The inquiry would become unmanageable if, in relation to each party potentially disadvantaged by each possible result, the Tribunal were bound to treat the inquiry as inter partes litigation with a concomitant obligation to supply particulars of possible contemplated decisions. Secondly, underlying the submission is a notion that, when witnesses associated with a particular party are called to give evidence, by counsel assisting, or by the Tribunal itself, the Tribunal is then hearing that party's case; so that there is an obligation to supply precise particulars of allegations before those witnesses are called. This notion treats those witnesses as being witnesses for that party, notwithstanding that they are called otherwise than at the intiative of that party. This notion has given rise, in the present case, to the submission that counsel for the applicants are entitled to determine the order in which, what they called, "Bond camp" witnesses should give their evidence, this submission being justified upon the basis that this prerogative is an essential ingredient of their being able to put the applicants' case.

35. I think that the submissions to which I have adverted are erroneous. The inquiry remains throughout an investigative proceeding. All witnesses called by counsel assisting, or by the Tribunal, are called in aid of that investigation; not to put anybody's "case". I agree that, at some stage, a particular party may wish to put a positive "case" to the Tribunal; and, for that purpose, to call witnesses who might not otherwise have been called. Although it was probably not necessary to so provide, s.25(3) specifically affirms the entitlement of a party to take that course. But these circumstances do not mean that, at some stage, the inquiry changes its character from an investigation to an adversarial proceeding or that the entitlement of a party to present his or her own evidence changes the proper characterization of the evidence of the witnesses called by counsel assisting or by the Tribunal.
Particulars

36. Two separate complaints are made in connection with the matter of particulars. They relate respectively to the requests for particulars made on 24 May 1988 and on 25 August 1988. In each case the applicants refer to a "decision", within the meaning of s.5 of the Administrative Decisions (Judicial Review) Act, as well as "conduct" within s.6 of that Act. It is accepted on behalf of the Tribunal that the Tribunal has decided not to direct counsel assisting to accede, and not, itself, to accede, to either of those requests and that it intends, subject to any order of this Court, to continue with the inquiry without those particulars being supplied. In relation to each of the decisions against the supply of those particulars, the applicants rely upon four grounds: that the Tribunal did not have the jurisdiction to make the decision, (Administrative Decisions (Judicial Review) Act s.5(1)(c)); that the decision was not authorized by the enactment in pursuance of which it was purported to be made (s.5(1)(d)); that the decision involved an error of law (s.5(1)(f)); and that the decision was contrary to law (s.5(1)(j)). In connection with the conduct of the Tribunal in proposing to continue the inquiry before particulars are supplied, the applicants complain of breach of the rules of natural justice (s.6(1)(a)); that procedures required by law to be observed in respect of the conduct have not been, and are not being, observed (s.6(1)(b)); error of law (s.6(1)(f); and absence of jurisdiction (s.6(1)(c)).

37. It seems to me that many of the grounds for review advanced by the applicants are misconceived. There is no question of lack of jurisdiction or authority and the only suggested error of law is a failure by the Tribunal to perceive the extent of the obligations imposed upon it by the common law doctrine of natural justice or by s.25(3)or s.80A of the Broadcasting Act. In relation to this aspect of the case, the question is whether the Tribunal is bound, either at common law or by either of these statutory provisions, to ensure the supply of the requested particulars before proceeding with the hearing.

38. The content of the common law duty to give natural justice to a person potentially affected by the outcome of an inquisitorial proceeding was considered by the Judicial Committee of the Privy Council in Mahon v Air New Zealand Limited (1984) 1 AC 808. That case arose out of a Royal Commission, conducted in New Zealand, into the causes of the crash in Antarctica of an Air New Zealand aeroplane. In his report, the Royal Commissioner, the appellant, made stringent criticisms of the airline and of some of its officers. He ordered that the airline pay $150,000 towards the cost of the Royal Commission.

39. At pp 814-815 of the report, Lord Diplock, on behalf of the Judicial Committee, contrasted the nature of an "investigative inquiry into facts by a tribunal of inquiry" with "ordinary civil litigation" conducted by trial judges. His Lordship pointed out that, whereas in ordinary civil litigation the judge is concerned to determine where, upon the balance of probabilities, the truth lies in respect of such evidence as the parties have chosen to adduce to the court, the situation is different in relation to an investigative inquiry. Writing with the instant facts in mind Lord Diplock said:

"In an investigative inquiry, on the other
hand, into a disaster or accident of which the
commissioner who conducts it is required, as
the judge was in the instant case, to inquire
into and to report upon 'the cause or causes
of the crash,' it is inevitable, particularly
if there are neither survivors nor
eyewitnesses of the crash, that the emergence
of facts, and the realisation of what part, if
any, they played in causing the disaster and
of their relative importance, should be more
elusive and less orderly, as one unanticipated
piece of evidence suggests to the
commissioner, or to particular parties
represented at the inquiry, some new line of
investigation that it may be worth while to
explore; whether, in the result, the
exploration when pursued leads onto to a dead
end or, as occurred in one particular instance
in the present case, it leads to the discovery
of other facts which throw a fresh light on
what actually happened and why it happened."

40. Against that background, it is instructive to turn to Lord Diplock's description at pp 820-821 of the content of the relevant principles of natural justice:

"The rules of natural justice that are germane
to this appeal can, in their Lordships' view,
be reduced to those two that were referred to
by the Court of Appeal of England in Reg. v.
Deputy Industrial Injuries Commissioner, Ex
parte Moore (1965) 1 QB 456, 488, 490, which
was dealing with the exercise of an
investigative jurisdiction, though one of a
different kind from that which was being
undertaken by the judge inquiring into the Mt.
Erebus disaster. The first rule is that the
person making a finding in the exercise of
such a jurisdiction must base his decision
upon evidence that has some probative value in
the sense described below. The second rule is
that he must listen fairly to any relevant
evidence conflicting with the finding and any
rational argument against the finding that a
person represented at the inquiry, whose
interests (including in that term career or
reputation) may be adversely affected by it,
may wish to place before him or would have so
wished if he had been aware of the risk of the
finding being made.
...
The second rule requires that any person
represented at the inquiry who will be
adversely affected by the decision to make the
finding should not be left in the dark as to
the risk of the finding being made and thus
deprived of any opportunity to adduce
had it been placed before the decision-maker,
might have deterred him from making the
finding even though it cannot be predicted
that it would inevitably have had that
result."

41. Moore was a decision of the United Kingdom Court of Appeal given when Lord Diplock, as he later became, was a member of that Court. The references to the case in Mahon were to passages in his Lordship's own judgment. At p 490 Diplock L.J. said:

"Where, however, there is a hearing, whether
requested or not, the second rule requires the
deputy commissioner (a) to consider such
'evidence' relevant to the question to be
decided as any person entitled to be
represented wishes to put before him; (b) to
inform every person represented of any
'evidence' which the deputy commissioner
proposes to take into consideration, whether
such 'evidence' be proffered by another person
represented at the hearing, or is discovered
by the deputy commissioner as a result of his
own investigations; (c) to allow each person
represented to comment upon any such
'evidence' and, where the 'evidence' is given
orally by witnesses, to put questions to those
witnesses; and (d) to allow each person
represented to address argument to him on the
whole of the case. This in the context of the
Act and the regulations fulfils the
requirement of the second rule of natural
justice to listen, fairly to all sides (see
Board of Education v Rice (1911) AC 179 at
p 182)."

42. The principles stated in Mahon were considered by Gibbs C.J. in National Companies and Securities Commission v News Corporation Limited [1984] HCA 29; (1984) 156 CLR 296 at pp 314-315. Because of the functions of the Commission, the Chief Justice thought that these principles were not applicable to inquiries conducted by it but his Honour went on to say:

"However, assuming their applicability, the
requirement to which they refer is satisfied
by the procedure which the Commission has
suggested, namely, that if, at the conclusion
of the hearing, the Commission proposes to
publish any matter adverse to or critical of
any person it will afford him or it an
opportunity to be heard and call evidence on
such matter before proceeding further."

Gibbs C.J. observed that "the rules of natural justice do not require the Commission to treat the hearing as though it were a trial in a court of law".

43. There is no doubt that, in ordinary civil litigation, a party is entitled to have particulars of the case sought to be made against him or her. As Hunt J said in Etherton v Public Service Board of New South Wales (1983) 3 NSWLR 297 at p 301:

"The fundamental principle in relation to
particulars in a civil case is that the party
must be made aware of the nature of the case
he is called upon to meet."

Hunt J. cited authority for that proposition, and he applied it in the case before him in which the plaintiff faced a disciplinary charge laid by the defendant under the Public Service Act (NSW). The decision of Hunt J. was affirmed by the New South Wales Court of Appeal: see (1985) 1 NSWLR 430.

44. It is equally clear that a person charged with a criminal offence is entitled to proper particulars. The principle was stated by Dixon J. in Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at p 489:

"For a defendant is entitled to be apprised not
only of the legal nature of the offence with
which he is charged but also of the particular
act, matter of thing alleged as the foundation
of the charge."

See also per Evatt J. at pp 497-498.

45. The principle enunciated in Johnson v Miller has been applied in many subsequent cases. Notwithstanding that, there is no rule that a defendant is entitled to particulars at the committal stage: see Ex parte Donald; Re McMurray (1969) 89 WN (Pt.1) (NSW) 462, Ex parte Coffey; Re Evans (1971) 1 NSWLR 434. This seeming inconsistency may partly be justified upon the basis that, at the committal stage, a defendant is not in jeopardy of conviction and that particulars will be available before any trial. But in Moss v Brown (1979) 1 NSWLR 114 at pp 129-130 the New South Wales Court of Appeal laid some emphasis upon the difference between an inquiry and a trial:

"The function of particulars to confine issues,
and hence the evidence to be given, is
inappropriate, or almost so, at an inquiry.
Subject to misuse of power to inquire into a
particular charge: ... the magistrate has the
power, and indeed the duty, in the end to
consider whether the evidence is sufficient to
warrant the defendant being put on his trial
for 'an indictable offence': s.41(6).
Subject to the observance of rules of
fairness, he may indict a defendant upon a
different charge from that the subject of the
inquiry: ... Subject again to the observance
of rules of fairness, and the bona fide
conduct of the inquiry, if the evidence
provides prima facie evidence of the
indictable offence inquired into,it would be
contrary to the dictates of s.41(6) for the
magistrate to confine his decision by the
limits of an issue as on a trial arising from
'particulars'. ... It is an inquiry. It is
possible that neither side may be quite sure,
or even know, what will be the true content of
the evidence, and are cross-examined.
The Crown may not be sure that witnesses will
adhere to earlier assertions; or, while
believing a witness is able to give evidence
in relation to the charge, it may not know its
content, because the witness elects to be
silent until called to give evidence.
Some danger exists, where advance information
is given, that it be labelled as
'particulars', so that they are used as an
instrument of pressure upon magistrates to
confine the legitimate conduct of the inquiry
as to evidence or otherwise as on a trial.
In an inquiry, there are many different means
by which a magistrate may ensure that persons
charged have sufficient information to enable
them reasonably to exercise rights of
participation in the inquiry. ... In some
inquiries, particularly in a long one, it may
be appropriate to take steps progressively to
ensure that the defendants are aware of the
Crown case as it emerges, sufficient to
facilitate cross-examination, leading evidence
in reply and making final submissions. It may
be appropriate initially not to intervene by
any direction and to permit the Crown case to
be opened, and then to intervene when any
complexities or problems in the presentation
of the evidence for the prosecution, and any
problems that lack of information may present
to the defendants, are known and understood.
It may be appropriate to give such directions,
if any, from time to time, as appears
appropriate, to meet these problems; or to do
this only at the end of all of the evidence,
so that the defendant is aware what the Crown
submits that the evidence establishes, and is
better able to make final submissions to the
magistrate. The appropriate course may be
simply to grant an adjournment, or to defer
cross-examination of a particular witness, or
to recall a witness. It may be appropriate to
order that information be given in the form of
particulars. The prospect of interruption of
the inquiry should encourage the Crown not to
withhold available information reasonably
sought. In short inquiries of a simple nature
the charge itself may suffice, but, if not,
some advance information may be required, and
ordered to be given, if the inquiry is to
proceed without interruption."

46. It seems to me that much of the above passage is applicable to an inquiry under s.17C of the Broadcasting Act. Some s.17C inquiries may commence as a result of a detailed complaint respecting the conduct of a person, in connection with which it would be practicable to give precise particulars. But this will not always, or perhaps usually, be the case. As Lockhart J pointed out in the Full Court, in this case, "the effect of s.17C(1) is that the mere receipt of a request from any person is sufficient to require the Tribunal to hold an inquiry". And the interpretation of the word "proposes" adopted in the Full Court means that the inquiry may commence without the Tribunal having formed any view, even a tentative view, upon the question whether it ought to exercise a substantive power or as to the facts relevant to that question. Moreover, regardless of the precision of the initial complaint, the situation may change during the course of the inquiry. An inquiry under s.17C is not structured litigation, with issues settled in advance. The Tribunal must follow the evidence wherever it leads, provided that it is related to the possible exercise of the relevant substantive power, and regardless of the attitude of the person who initiated the matter. As the High Court said in Hardiman's case at p 33:

"To discharge its duty the Tribunal must in an
appropriate case investigate for itself the
possibility of contravention, even in
circumstances where there is no party before
the Tribunal willing, anxious or able to
pursue the issue. ... The appearance of a
party in an inquiry before the Tribunal
alleging that there are, or may be,
contraventions of the Act cannot qualify or
modify the Tribunal's statutory duty to
inquire into relevant matters."

47. The comparison made by the High Court, a little later in the judgment, between criminal proceedings and an inquiry is important in the present context:

"The proceedings were not proceedings in a
criminal court which might result in
conviction and penalty where it would have
been appropriate for the party alleging the
offence to specify it and give appropriate
particulars of it. The inquiry was an
administrative inquiry in which the Tribunal
had a statutory responsibility to inquire into
the issue. It was bound to discharge its
responsibility, notwithstanding that the same
issue could arise in proceedings for offences
against the Act."

The Court's comment on the matter of particulars was made by way of obiter dictum. But having regard to its source, great weight must be given to it; the more particularly as the comment accords with the views expressed in Moss v Brown. The confines of particulars are inconsistent in principle with the performance of a statutory duty to follow the evidence wherever it leads.

48. This point is highlighted by consideration of the particulars sought in this case. The first request, made on 24 May, commenced by asking "Which substantive powers are proposed to be exercised by the Tribunal?". Presumably the writer meant "proposed by the Tribunal", thereby making the assumption that the Tribunal had a firm proposal. The validity of that assumption was denied by the Chairman on 27 May. The questions which followed sought information about particular allegations. It is not clear whether the writer had in mind allegations by the Tribunal, by counsel assisting or by the Australian Government Solicitor; but all three have denied that they were then making any positive allegations. The Tribunal was simply hearing evidence relating to the matters formulated as issues, which evidence was being adduced by counsel assisting on the instructions of the Australian Government Solicitor. Once it is understood, as the Full Court held, that there may be a valid inquiry under s.17C without a firm intention by the Tribunal to exercise a substantive power, and without formal allegations, it becomes apparent that these questions are inappropriate. The situation is quite unlike cases, of which Etherton is an example, in which precise charges are laid before a disciplinary inquiry.

49. Although the second request, on 25 August, was couched in different terms, the same comments may be applied to it. The various questions used the words "is contemplated". In some cases it was made clear that these words referred to the contemplation of the Tribunal. In other cases the identity of the contemplator was not revealed, but presumably these questions also were intended to refer to a contemplation by the Tribunal. Once again, the assumption was made that the Tribunal presently had a contemplation upon these various matters, an assumption at variance with the Chairman's statement on 27 May. Presumably, as the evidence unfolded, the three members of the Tribunal who were conducting the inquiry each formed impressions about various matters. Their impressions may, or may not, have co-incided. But these impressions ought to have been -- and, no doubt, were -- merely tentative impressions open to reconsideration as further evidence was adduced, and subject to whatever emerged in submissions and even in the ultimate deliberations upon the case of the Tribunal members. Under these circumstances, it would be quite mischievous to require the members to take this course, a serious question would arise as to whether those members should continue in the inquiry: see The Queen v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, The Queen v Maurice; Ex parte Attorney-General (Northern Territory) (1987) 73 ALR 123.

50. The above considerations impel me to the conclusion that it is a fundamental misconception to see the subject inquiry as an occasion for the supply of the type of detailed particulars sought by the applicants. As is indicated by Mahon, the duty of the Tribunal is to ensure that the applicants are made aware of the material placed before the Tribunal, and which is relevant to the exercise of any power in a manner adverse to their interests, and that they have a full opportunity to put to the Tribunal such additional material -- by way of both evidence and submissions -- as they may think helpful in persuading the Tribunal against the exercise of such a power.

51. In applying Mahon, I do not overlook the fact that a Royal Commission generally has no power to make substantive orders adversely affecting persons whose conduct it investigates whereas, at the end of a s.17C inquiry, the Tribunal may exercise powers drastically affecting the interests of a licensee. It is possible to exaggerate the significance of the distinction. As Mahon itself eloquently demonstrates, the findings of a Royal Commission may have a devastating effect upon the reputation of a person, perhaps causing an indirect financial loss exceeding that which could be sustained, in another case, as a result of the direct exercise of power by a body obliged to ensure that full particulars of allegations are supplied. But, accepting that there is a distinction between the two types of inquiry, it is not critical to the present question. The existence of an obligation to cause the supply of particulars of allegations depends upon the question whether the subject proceeding is one in which specific allegations are being made -- in which case considerations of both fairness and efficiency would support the particularization of those allegations -- or whether it is a general inquiry into a particular topic without precise allegations as to conduct -- in which case particulars are both impractical and potentially embarrasing to the proper conduct of the inquiry; the point made in Moss v Brown.

52. The present applicants have been represented throughout the course of the inquiry. They are aware of all of the material so far put before the Tribunal. They have had the opportunity of cross-examining all of the witnesses who have given evidence. There is no suggestion that this situation will change or that the applicants will be precluded from putting before the Tribunal such relevant evidence and submissions as they may wish. The only possible question is whether, accepting that no formal allegations have yet been made and that the detailed particulars sought in the two letters are inappropriate, the Tribunal has caused, or is likely to cause, the applicants to be "left in the dark" as to the type of findings and orders which may be made.

53. Notwithstanding the fact that the matter is not mentioned in Mahon, or in Moore, it should, I think, be accepted that there are cases in which some specification of the issues is necessary if an inquiry is to be fair. A person potentially affected by the outcome of an inquiry is entitled to understand the nature of the inquiry and the issues being investigated; otherwise meaningful participation becomes impossible. The nature of an inquiry, and the relevant issue or issues, is often self-evident; but upon some occasions the document establishing an inquiry is couched in such broad terms that further information is necessary. Having regard to the width of the Tribunal's substantive powers, this situation may occur in an inquiry under s.17C of the Broadcasting Act. In such a case fairness requires the Tribunal to take such steps as may be necessary to identify the subjects to be addressed. Any such refinement of the subject matter of the inquiry can, and should, be framed in terms of issues and relevant powers; the Tribunal indicating no view, however tentatively, about the relevant facts or the likely outcome of the inquiry. Except where allegations have in fact been made, it is inappropriate to supply this additional information in the form of allegations.

54. The course to which I have referred has been followed in this case. The issues which have been notified to the applicants specify with precision the matters being investigated. The notice of 2 March 1988 indicated the type of order which would be under consideration at the inquiry. I agree with the comment, made by Lockhart J in the Full Court, that the applicants "had no doubt about the subject matter of the inquiry and its possible outcomes ...". The situation is, of course, fluid. As additional material comes to hand new questions may arise. In particular, and without commenting upon the substance of the matters under investigation, evidence elicited from witnesses closely associated with the applicants may throw further light upon the question whether any of those matters are relevant to management capabilities, as distinct from fitness and propriety. As the situation develops, it may become appropriate for the Tribunal to ensure that the issues are revised or, in some other way, to direct the attention of the applicants to particular aspects of the case. But, upon the history of the inquiry to date, there appears to be no danger that this duty will be neglected.

55. Reference should be made to an additional submission of counsel for the applicants. Counsel draw attention to a passage in the judgment of Gibbs C.J. in National Companies and Securities Commission v News Corporation, at p 316:

"Further, when the Commission said that it
would give the respondents an opportunity to
be heard, it must have meant a proper
opportunity, and there is no reason to think
that the Commission will not give to the
respondents adequate notice of any adverse
conclusion which it has tentatively reached,
or of any criticism which it tentatively
proposes to make, or that it will not listen
with an open mind to whatever material is then
put before it by the respondents and give full
weight to such material."

They submit that this sentence indicates a view that tentative conclusions ought always to be disclosed to a person potentially affected by the outcome of an inquiry. I cannot accept this submission. It seems to me inconsistent with the acceptance by Gibbs C.J. of the adequacy of the requirements stipulated in Mahon. The statement made by the Chief Justice must be read in the light of the facts of the case then under consideration. The appellant Commission was engaged in a private hearing. The High Court held that News Corporation was not entitled to be represented throughout that hearing. It followed that, in the absence of some intimation of relevant matters, the company might not become aware of the issues which it needed to address. An obvious way of ensuring that the company would not be "left in the dark" would be for the Commission to give notice of any tentative adverse conclusion. But this can hardly be necessary in a case where the subject matter of a potential criticism has been flagged as an issue, in the presence of the affected person, during the course of the inquiry; and particularly if questions have been directed to that matter by counsel assisting or by members of the Tribunal themselves.

56. I do not wish to suggest that occasions will never arise in which it will be appropriate for an investigator, like the Tribunal, to direct the attention of a party to a particular matter. In rare cases the investigator might do this by indicating a tentative view upon a point: see, for example, the procedure suggested by Woodward J in Freeman v McKenzie (6 September 1988, not reported). The investigator might simply express concern about the adequacy of the material relating to an aspect of the case. Judges frequently take this course, in an endeavour to gain the maximum assistance from the parties in resolving an issue. In an unusual case -- like Mahon, in which the adopted procedure obscured from Air New Zealand the significance of evidence which the Royal Commissioner regarded as condemnatory of that party's conduct -- there may be a positive obligation upon the investigator to call attention to a point. But this course will hardly be necessary in a case where the relevant matter has been clearly identified as an issue and has been the subject of contested evidence.

57. The question whether, in a particular case, an investigator has left a party "in the dark" as to the risk of an adverse finding being made upon a particular subject must depend upon the whole of the circumstances of the relevant inquiry. It is a question not capable of determination by the application of rules devised for the conduct of a different type of proceeding. Rarely will it be appropriate for the Court to intervene upon this ground prior to the conclusion of an inquiry, and then only where it is clear that, left to its own devices, the Tribunal will leave a party in doubt as to the nature of the inquiry or the risk which it faces. That is not this case. Counsel for the Tribunal, who are the counsel assisting the Tribunal at the inquiry, expressly accept that their client has an obligation to bring to the notice of the applicants any provisional views which it may form, upon relevant matters of fact or as to the consequences of any such findings, in any case where the omission to do so might expose the applicants to an adverse finding upon an unforeseen issue, or in some other way might deprive them of an opportunity to deter the Tribunal from making that finding.

58. There is no denial of natural justice in the Tribunal's refusal to supply, or cause to be supplied, particulars of detailed allegations, as sought in the letters of 24 May 1988 and 25 August 1988.

59. I have discussed the matter of particulars in terms of the Tribunal's obligation to afford to the applicants natural justice. In so doing, I do not overlook ss.25 and 80A of the Broadcasting Act; but I do not think that the existence of those provisions adds any additional strength to the applicants' argument regarding particulars. It may be conceded that, although the second clause in s.25(1) is expressed in facultative, rather than mandatory, terms, the powers conferred by it are intended to be used, where necessary, to ensure a just hearing of the inquiry. It may also be conceded, with s.25(3) in mind, that a party does not have a reasonable opportunity to put a case to an inquiry unless that party is sufficiently apprised of the issues to be determined at the inquiry. But this simply means that s.25 relevantly casts upon the Tribunal a duty corresponding to that imposed by the general law. Section 80A does likewise. There is nothing in either section which goes further and requires that the Tribunal supply information in a particular form. In particular, there is nothing which requires the Tribunal to formulate, or have counsel assisting formulate, precise allegations or intimations of possible conclusions.
The "Bond camp" witnesses

60. It is convenient to discuss together the two remaining issues in the present proceeding: the entitlement of counsel for the applicants to elicit the evidence in chief of the six witnesses referred to in the letter from the Australian Government Solicitor of 25 May 1988, and their entitlement to determine the order in which these witnesses shall be called. Once again, a number of grounds, under the Administrative Decisions (Judicial Review) Act, are relied upon: lack of jurisdiction, lack of authority, error of law, that the decision was contrary to law, breach of the rules of natural justice and that procedures required by law to be observed have not been, and are not likely to be, observed. Some of these grounds are clearly inappropriate but the last mentioned ground suffices to raise the relevant issues.

61. As to the first matter, it is difficult to see why the applicants have pressed for an order. The letter of 25 May clearly indicated to Blake Dawson Waldron that counsel assisting agreed to the request that counsel for the applicants take the evidence in chief of these witnesses. This attitude was endorsed by the Tribunal itself, in the announcement made by the Chairman on 27 May. I was informed during argument in this proceeding that the attitudes indicated on 25 and 27 May remain the attitude of counsel assisting, and of the Tribunal, at this time. There is no reason to think the position will be otherwise when the inquiry resumes.

62. I have previously referred to the notion adopted by those advising the applicants that those witnesses who have, or who have had, some continuing association with the applicants are necessarily witnesses in the applicants' own case. This is not correct. A person charged with the duty of investigating the conduct of a particular person, or conduct within a particular organization, will often find it necessary to cause a person closely associated with that person or organization to give evidence. The very association between the witness and the person or organization whose conduct is under scrutiny is likely to make the evidence of that witness particularly material. An associate of the person or organization under scrutiny does not, by that fact, become immune from being required by the investigator to give evidence; and, if called, he or she does not, by that fact, become the witness of the person or organization. The witness is called to assist the inquiry. Subject to any special statutory provision, or agreement, to the contrary, it is for the person conducting the inquiry to determine both the time when that witness will be heard and the order in which the various counsel may question the witness. Either of these matters may affect the value of a witness' evidence. The order in which witnesses are called may also influence the assistance obtainable from other witnesses. The effective conduct of an inquiry is not to be hamstrung by a claim of property made by an associate of the witness.

63. In support of their submission that they are entitled to determine the order in which the "Bond camp" witnesses give their evidence, counsel for the applicant cite Briscoe v Briscoe (1968) P 501 and Barnes v BPC (Business Forms) Ltd (1975) 1 WLR 1565. These were both cases in which the Court emphasized the entitlement of the representative of a party to determine the order in which the witnesses for that party are to be called. Both cases were ordinary inter partes litigation. In Briscoe a wife sought a matrimonial order on the ground of desertion. At the commencement of the husband's case, the magistrate refused to allow counsel for the husband to call another witness before calling, or deciding whether to call, his client. The Divisional Court allowed an appeal. At p 504 Karminski J commented:

"I have always thought that the duty of
deciding what witnesses should be called and
in what order they should be called is solely
a matter for counsel. It is a grave
responsibility and it rests on him and him
alone ...".

In the same case, Lane J spoke of the "fundamental importance" of counsel retaining the right "to choose what witnesses to call and in what order".

64. Similar views were expressed in Barnes, this being a case in which a solicitor appearing before an industrial tribunal had reluctantly acceded to strong pressure from the chairman of the tribunal as to the order in which he should call his witnesses.

65. The principle applied in Briscoe and in Barnes is not in doubt. But it has no application to the present question. The so-called "Bond camp" witnesses are not being called -- at least at this stage -- as part of the case being made to the inquiry by the present applicants. They are being called, upon the initiative of counsel assisting, because those counsel think that they may be able to assist the Tribunal in relation to the relevant issues. Although these witnesses happen to have, or to have had, a close association with the applicants, they are technically in a position no different from that of the other witnesses called by counsel assisting. It is true that counsel assisting, and the Tribunal, have agreed that counsel for the applicants may take those witnesses in chief. Presumably, this concession was made because of a view that this procedure was likely to be the most effective way of obtaining a full and coherent account of the witnesses' involvement in the matters under investigation. But the circumstance that this concession was made does not mean that the witnesses should be regarded as being the witnesses of the applicants, that is witnesses in the applicants' case. They remain witnesses called by counsel assisting in order to assist the Tribunal in its inquiry.

66. The time might come when counsel for the applicants decide to put a positive case to the inquiry on behalf of their client. There may be evidence, which they think material, which has not been elicited. If so, they are entitled to put that case. Both s.25(3) of the Broadcasting Act and the requirements of natural justice guarantee them that right. They may call additional oral evidence; perhaps from new witnesses, perhaps by recalling witnesses already heard; perhaps by a mixture of the two. In calling that evidence, that is in presenting their own case, counsel for the applicants will have the right to decide not only which witnesses to call, but also the order in which those witnesses are to be called. Moreover, they will be entitled -- as of right, not merely by concession -- to take those witnesses in their evidence in chief. These entitlements will spring from the fact that the applicants will then be in their own case. But, unless and until they do embark upon a case of their own, the applicants do not have the rights over the witnesses which they claim; regardless of the identity of those witnesses.

67. I do not think that the Tribunal has departed from the requirements of natural justice, or of s.25 of the Broadcasting Act, in relation to any of the matters argued in this proceeding. The Application should be dismissed with costs. In accordance with the agreement between the parties, those costs will include the costs of the hearing before Morling J. on 23 and 25 August 1988.