Trevorrow v The State of South Australia and ANOR A50/1996 [1997] HCATrans 272 (3 September 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A50 of 1996

B e t w e e n -

THOMAS EDWIN TREVORROW

Applicant

and

THE STATE OF SOUTH AUSTRALIA and IRIS ELIZA STEVENS

Respondents

Application for special leave to appeal

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 3 SEPTEMBER 1997, AT 4.49 PM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC: I appear with my learned friend, MR S.J. KENNY for the applicant, may it please the Court. (instructed by Camatta Lempens Pty Ltd)

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia: I appear with my learned friend, DR N.A. MANETTA, for the respondent. (instructed by the Crown Solicitor for the State of South Australia)

TOOHEY J: Yes, Mr Tilmouth.

MR TILMOUTH: May it please the Court, when Lord Chief Justice Hewitt remarked that not only must justice be done but it must be manifestly and undoubtedly seen to be done - - -

GAUDRON J: He was not talking about royal commissions.

MR TILMOUTH: No, but he was talking, with respect, about one of the axioms of administrative law and he was talking in a case which was like this case, if the Court pleases, in the Sussex Justices Case there was a retirement, the Court may remember, of the clerk who was a member of the firm of solicitors having interest in the matter and it was held that the mere appearance of justice not being done was sufficient to set aside the conviction in that case.

In my submission, that has been passed down ever since as one of the fundamental principles of administrative law and there is no reason, apart from section 9 of The Royal Commissions Act 1917 here, why that should not flow through in this case.

TOOHEY J: It is section 9 that you have to come to grips with, is it not?

MR TILMOUTH: Yes, if the Court pleases, and in my submission, the Court below did not come to grips with section 9 at all. Could I go straight to that and then come back to what I wanted to put to the Court. In the appeal book at page 42 all that Justice Williams at first instance held at lines 18 and 19 was that:

Section 9 of the Royal Commissions Act stands in the plaintiff's path.

There was some other discussion but essentially he dismissed the application on the basis that it was found to fail. There was before him, and indeed, in the written submission which had to be put to the Full Court because it was heard in private, there was never any contention that section 9 did not apply or was capable of applying. What the contention was, and which has never have been dealt with by both courts below, was whether the principles in Hickman had been satisfied.

GAUDRON J: But where is your evidence to bring Hickman into - - -

MR TILMOUTH: The evidence, if the Court pleases, is twofold. First of all, if the Court pleases, there is the finding which is in the materials. There is a small book of materials, if the Court pleases. Page 7 of the royal commission itself which relates to the applicant's alleged involvement in this matter - - -

GAUDRON J: Could I just ask you before you go, could you go back to section 9 and tell me precisely what it is that brings section 9 into play, what is it that you seek to challenge, a -

decision, determination, certificate, or other act or proceeding.....or anything done or the omission of anything.....proposed to be done or omitted to be done,

MR TILMOUTH: On the widest view for the applicant, none of them, because in our submission when one looks at the Royal Commissions Act it contemplates that the royal commissioner sits as such and is defined in section 3 as "a commission of inquiry" actually sitting, and one of our arguments, if the Court pleases, is that in the consultation with Professor Tonkinson the commissioner went outside the statutory powers, was not sitting at all, and therefore section 9 in terms does not protect that consultation.

GAUDRON J: So that was an extraneous act entirely. Well, you cannot have that. If it was a social meeting at a dinner at which various people were present you cannot undo the dinner, for example.

MR TILMOUTH: No, I accept that, if the Court pleases, but it was not a social meeting at all. In fact, what had happened is disclosed at page 14 of the appeal book, line 13. This is the subsequent article published by Professor Tonkinson:

Near the outset of the Royal Commission, which was held in Adelaide, I was telephoned by Counsel Assisting the Commissioner and asked to advise them on matters pertaining to the anthropological evidence.

Then there is an irrelevant matter. Line 25:

As it happened, I was not called as a witness or asked for a written submission, but was invited to make oral comment on aspects of anthropological theory and practice, and on the interpretations derived from the anthropological evidence by the Counsels Assisting. I read several thousand pages of submissions and transcripts -

which is a considerable involvement, if the Court pleases -

and, during two brief visits to Adelaide, met with Counsel Assisting for intensive discussions, and with the Commissioner once. My conclusion was that the possibility of the existence of the secret women's tradition had to be conceded and that the second report of the CA -

who was Dr Fergie -

presented an internally consistent account that allowed for this possibility. On the basis of the anthropological evidence, however, I considered that the likelihood of such a hugely consequential body of knowledge remaining so restricted, and its status as a secret-sacred category remaining invisible, was slim.

Now the proper inference to be drawn from that, if the Court pleases, is that in the consultation or the - - -

GAUDRON J: With counsel assisting?

MR TILMOUTH: Yes, but also - - -

GAUDRON J: With counsel assisting, but counsel assisting a royal commission will consult with a wide variety of people, some of whom may or may not be called.

MR TILMOUTH: I do not dispute that and I accept that it is a different function. It is with the commissioner once.

GAUDRON J: Met "with the commissioner", not for "intensive discussions", not for discussions at all, met "with the commissioner once".

MR TILMOUTH: If the Court pleases, the reason why I started by referring to the Sussex Justices' Case is for this very reason. Although we would say the proper inference to draw is that what follows, that is, my conclusions was discussed with the commissioner, in one sense, it does not matter.

GAUDRON J: That really does not go to the question either. The question is "What brings the Hickman principle into play and by reference to what act or omission of the royal commission.

MR TILMOUTH: It is the discussion with the commissioner and, in our submission, the proper inference in which he discussed with her the conclusion which is referred to in the passage I have just read.

TOOHEY J: I rather took you to be saying that section 9 has no application because none of the components of that section is applicable to the conduct complained of in the present case.

MR TILMOUTH: That is our first submission, that what happened here was outside the - - -

TOOHEY J: But how do you take it outside the language of "anything done"?

McHUGH J: This is a thing done.

MR TILMOUTH: Because in doing so she was not sitting as a commissioner under the Act. We also take it outside, if the Court pleases, because - - -

McHUGH J: If she was not sitting as a commissioner, you have no case.

MR TILMOUTH: No, with respect.

McHUGH J: The hypothesis of your case is that she must have been.

MR TILMOUTH: No with respect, our case is that she was sitting outside the Act as it were, if I can put it this way, in chambers, and all that means is that we do not have to worry about the threshold of section 9. All we simply have to demonstrate is the appearance.

GAUDRON J: What do you want? What relief do you seek?

MR TILMOUTH: In our submission, the first thing, what we would prefer, if the Court pleases, is for this - - -

GAUDRON J: You seek to set aside the decision or determination?

MR TILMOUTH: Yes.

GAUDRON J: It is the decision or determination you want to review, as it were, or you want to question or review.

TOOHEY J: Is that right? Is that what you are seeking? I rather thought that, if you look at page 1 of the application book, you were seeking a declaration of the failure "to observe the requirements of procedural fairness".

MR TILMOUTH: Yes, that was the primary order sought in the court below.

TOOHEY J: All right. Now what else is sought by the application, by way of relief, that is?

MR TILMOUTH: Only a declaration was sought, if the Court pleases.

TOOHEY J: In the terms that appear in paragraph 1 on page 1.

GAUDRON J: But is that not a review of the decision or determination or of a proceeding of the commission or of something done or omitted to be done?

MR TILMOUTH: Well, in one sense it may be, but the other thing we sought, if the Court pleases, on page 2 was not only in a) was there a denial of natural justice but in b) a declaration that a "fairminded observer" et cetera knowing that there was this meeting with the commissioner might well think that there was some predisposition towards the outcome of the case. Now that sort of order could be made in an ordinary administrative law context if it were not for the impediment of section 9. We were seeking declarations of denial of natural justice and also a declaration that what was done, in effect, should not have been done.

TOOHEY J: It is still not clear to me, Mr Tilmouth, whether - you seem to be moving into and out of section 9 depending on, perhaps, the question that is being put to you by members of the Court. Are you adhering to the submission that section 9 is not applicable in the circumstances of this case?

MR TILMOUTH: That is the first submission. The second submission, if it is a relevant decision or determination, that what next has to be asked is whether or not the Hickman - - -

TOOHEY J: Wait a moment. To say is there a relevant decision or determination puts to one side the language of "anything done or the omission of anything, or anything proposed to be done or omitted to be done". You cannot just pin your flag to the words "decision" or "determination".

MR TILMOUTH: No, I accept that. The first submission is that what was done was done by the commissioner rather than her sitting as a commissioner as required by the Act. The Act contemplates, in effect, that when she is exercising the functions under the Royal Commissions Act which would be protected by section 9, she is effectively sitting.

The other argument, if the Court pleases, is one goes back to section 7. Section 7, it is in the materials in the first tab, page 2 of the Act. Section 7 is in a conventional form in the sense that the royal commission is not bound by the rules of evidence. The last two lines are important, if I can read them, because it goes on to provide that:

without limiting in any way the operation of this section, the commission may refer any technical matter to an expert and may accept his report as evidence.

Now our submission is, if the Court pleases, that if the commissioner was minded to use an anthropologist, like Professor Tonkinson in this case, in any way, the only mechanism to deal with it was under section 7 and that would require a reference - - -

GAUDRON J: But you do not know that it was used in any way other than by counsel assisting for the purpose of informing herself, was it?

MR TILMOUTH: No, well my first point, of course, is that that does not matter. But the second point, if the Court pleases, if I could take the Court back to the materials page 8 there was a finding by the royal commission in the report itself, this is about point 3 and it is in the passage commencing:

It appears from Dr. Fergie's evidence -

Could I read the last four lines of that, if the Court pleases.

It was a tradition that, if it existed, had implications affecting the future of the Ngarrindjeri race. It is highly unlikely that the tradition claimed could have remained such a closely guarded secret.

Of course, what Professor Tonkinson said was precisely that, but in different words. If the Court pleases, going back to page 14 of the appeal book:

I considered that the likelihood of such a hugely consequential body of knowledge remaining so restricted, and its status as a secret-sacred category remaining invisible, was slim.

The finding mirrors, just in different words, the very conclusion which Professor Tonkinson had reached.

McHUGH J: There is hardly anything surprising about that, it is just common sense.

MR TILMOUTH: I would submit not so. It is a matter of expert evidence but, if the Court pleases, in my submission, there is no coincidence between the closely paralleled conclusion and the finding which I have drawn attention to. The other issue in relation to this is that at page 64 of the appeal book in the summary provided to the Court - - -

GAUDRON J: Are we now on to Hickman or not? I do not know what this is directed to?

MR TILMOUTH: This is directed partly to whether or not there was any influence on what Tonkinson had said - - -

GAUDRON J: That only becomes a relevant issue if the matter can be considered, does it not?

MR TILMOUTH: Yes, it is related to bona fides, this part, as well as whether or not the commissioner actually did more than had a social meeting.

GAUDRON J: So it is directed to Hickman?

MR TILMOUTH: Yes, it is, as well as the former. Page 64, if the Court pleases - - -

GAUDRON J: It is at this point that you will have to tell me, I think, what it is that was not done bona fide.

MR TILMOUTH: What was being done here, if the Court pleases, at page 64 line 12 is that there was a submission being made by counsel for Dr Fergie to tender an article by Professor Tonkinson and counsel assisting resisted it by saying:

"Professor Tonkinson is not in the arena, he is not giving evidence, and therefore an article proffered to the Commission about his views would be quite inappropriate....(He) is being used by you -

ie, the commissioner -

merely as a consultant and he will interpret the evidence to the extent that you require that sort of assistance".

And then the commissioner responded about line 17:

No, he won't be giving evidence and of course I wouldn't want him placed in a position where there is evidence of his appearing before me.

At line 20:

I wouldn't propose to do it for the reasons that Mr Smith has indicated".

Now those reasons are the ones that I initially read, namely that either his "views would be quite inappropriate" and/or that his evidence was "being used" by her "merely as a consultant and he will interpret the evidence to the extent that you require" it. Our submission on bona fides, if the Court pleases, bearing in mind that that, as this Court said in O'Toole v Charles David, has not been fully considered by this Court, is that effectively the commission there was saying, on the one hand, Professor Tonkinson's views would be quite inappropriate but we are using him without telling the parties what use was being made on the other.

TOOHEY J: Is there any reason why, in the course of the commission, a whole bundle of anthropological writings could not have been handed to the commissioner.

MR TILMOUTH: Not behind the parties, if the Court pleases, those who are represented.

TOOHEY J: No, I mean in the course of the commission, that would be commonplace, would it not?

MR TILMOUTH: For counsel assisting it may be, but if the commissioner was to use any of that material in any way or to consider it, then it would have to be done in the hearing itself and appropriately recognised so that those - - -

TOOHEY J: I am not sure what you mean by that, Mr Tilmouth.

MR TILMOUTH: It would be wrong to read material behind closed doors and take it into account without acknowledging that fact as part of the hearing process.

GAUDRON J: That is not what section 7 says.

MR TILMOUTH: In my submission, that is precisely what section 7 says you cannot do. The only way a commissioner is enabled to use it is to, in fact, refer as a function of the commission, ie, make an order to refer, and to accept it in evidence and the only way it can be considered if it is first accepted into evidence and then dealt with accordingly.

TOOHEY J: What do you mean by accepted into evidence?

MR TILMOUTH: That it becomes part of the record of the royal commission.

TOOHEY J: By being formally tendered to the commissioner.

MR TILMOUTH: Yes, under section 7.

McHUGH J: The commissioner does not have to disclose every piece of reading that he or she does.

MR TILMOUTH: No, I agree with that, but this was material. This attacked the very heart of the findings which were made.

McHUGH J: We do not know that. We are told nothing at all about what was said.

MR TILMOUTH: With respect, it is clear, on the materials that we have the capacity to produce, that there was this meeting with the commissioner.

GAUDRON J: No, it is said and so far as appears to me anyway, there is some hearsay evidence now tendered.

MR TILMOUTH: Well it is the best evidence available to us, if the Court pleases, and we were never - - -

GAUDRON J: But that is all you have got, hearsay evidence?

MR TILMOUTH: If the Court pleases, this was never resolved against us in either of the courts below. This issue was not the one in which - - -

GAUDRON J: Of a meeting, but not of anything else. You have got no evidence of anything else which can, in any way as I see it, establish any lack of bona fides in relation to the proceedings of the commission, if you like, to use a generic term.

MR TILMOUTH: I can only repeat, if the Court pleases, as strongly as I can, on the one hand, there is the public statement "his views would be quite inappropriate" and then the statement that he is "being used by you" in the passage I read to "interpret the evidence" if you need it and there is this material from Professor Tonkinson in which he talks about a meeting with the commissioner once and, in the very same breath, the conclusion which just so happens to be consistent with and, in fact, mirrors one of the central adverse conclusions made by the royal commissioner. That material has to be judged according to our capacity to produce it and our capacity for the respondent to refute it.

No ruling in the courts below put us out of court on this issue. None of the courts below looked at the Hickman principle and determined the limits of the bona fides limb and dealt with this issue. None of the courts below dealt with the issue which we sought to raise about the proper procedure, the statutory constraint of dealing with expert material under section 7.

GAUDRON J: You do not get to section 7 in the statutory constraint until you get past Hickman and past section 9.

MR TILMOUTH: That is true, but we have never had a determination of the merits on that matter.

TOOHEY J: I think your time has expired, Mr Tilmouth.

MR TILMOUTH: It has indeed, your Honour.

TOOHEY J: Thank you. Mr Solicitor.

MR SELWAY: Your honours, apart from the question of the meaning and effect of section 9, we would concede that where the commissioner has received creditable information which is prejudicial to the position of an interested person, the commissioner would be under a duty to provide that information or to provide an opportunity to that person to contradict that information, a normal principle of natural justice.

The issues that arise in these proceedings are, firstly, the effect of section 9 and in that regard, could I perhaps draw the Court's attention to the actual terms of the declaration sought on page 1 of the appeal book:

A declaration that the Report of the Hindmarsh Island Bridge Royal Commission.....in reporting adversely to the plaintiff and to certain Ngarrindjeri people failed to observe the requirements of procedural fairness in that:

The applicant has put the declaration in respect of the report and, indeed, had to do so because it is only the report that affects the applicant's position and the affidavit shows, or tries to show in what way it does that. What we say is that it is plain that the report is the act, the decision or whatever, that is disputed. It clearly comes within the terms of section 9. So the first question is the effect of section 9.

The second question is whether there is any evidence put before the court, either here or below, that the commissioner has received any creditable information or, indeed, any information whatever and the answer to that, with respect, is no.

The third question is whether that information was, in fact, prejudicial to the position of any person, in particular in view of his affidavit, to the position of Mr Trevorrow. Again, the answer to that question is no. We have no idea what information, if any, was given by the Professor to the commission. It is plain that the Professor has given information and advice to counsel assisting but that is a quite different question. Counsel assisting does not owe a duty of fairness. Counsel assisting's job is to present a case before the royal commission. It is the commissioner who, if anybody owes such a duty and, with respect, there is no evidence that that has not been disclosed. In terms of section 9 of the Royal Commission Act we say that, firstly, there is no dispute that that gives rise to a Hickman-type principle.

TOOHEY J: What do you mean, Mr Solicitor, when you say that it gives rise to a Hickman-type principle?

MR SELWAY: In this context. I have put it badly, your Honour. Privative clauses can take a number of meanings and effects. If you like, the broadest type of privative clause gives rise to the Hickman principle.

GAUDRON J: That is to say it is completely effective unless the Hickman principle is brought into play.

MR SELWAY: Yes, your Honour and what - - -

TOOHEY J: Do you say that section 9 falls into that category or some other category?

MR SELWAY: We say section 9 falls into that category. We say, as we understand it, there is no dispute that section 9 falls into that category. The argument my friend puts is that you do not get to section 9 because, for some reason or other, you are outside of it. But there is no position put that section 9 is not a, if you like, Hickman-type clause. If that is true, the effect is that the Royal Commission Act itself must be interpreted in accordance with that clause and we say the appropriate test in the way that Hickman works is well explained by your Honour Justice Gaudron and Justice Gummow in Darling Casino v NSW Casino Control Authority and what your Honours have said there, as we understand other decisions of the Court, is not in any way exceptional and is well accepted.

That being the case there is no issue of general importance raised before this Court as to how Hickman works. Everyone would say that is perfectly clear. There is no issue in this case as to bona fides raised on the material because the material does not establish any evidentiary bias.

The other matter raised is a question of whether declaratory relief is outside of the Hickman principle. The answer to that is declaratory relief clearly falls within section 9 in its terms and there is no matter of general importance, or we would say, of substance in that question.

So what we say is that in this case there is no material that even infers that the commissioner was not acting bona fide in producing her report, that being the relevant act. We say that there is no material that suggests that report did not relate to the subject matter of the commission or that the report is not reasonably capable of reference to the powers given to the commission, that is to say we say the matter clearly comes within the Hickman principle.

We again make the point that the information presented is inadequate and if this was a matter that the Court thought that there was some issue of general importance, we would say that this was not a matter that raised it because the factual material is inadequate to do so.

Finally, we would say that the matter, in any event, is not of general importance because there is no uncertainty about the Hickman principle. Section 9 of our Royal Commissions Act has been described in the cases as uniquely wide and that appears to be a correct analysis of it and the information before the Court is inadequate.

Your Honours, those are our submissions as to why special leave should be refused.

TOOHEY J: Yes, thank you, Mr Solicitor. Mr Tilmouth.

MR TILMOUTH: Three brief matters if the Court pleases. On the Hickman principle, in my submission it is not really a question of whether or not section 9 applies unless Hickman is brought into play. The proper analysis is, as this Court said in Darling Harbour, that a privative clause will apply so long as what happens satisfies the Hickman principle and we have had no ruling on the latter question.

GAUDRON J: You focus entirely on bona fides, do you?

MR TILMOUTH: No, breach of statutory constraint, the section 7 requirement, which is a code. The only mechanism for dealing with experts is through section 7. It is on two bases really, bona fides and breach of statutory constraint, although we would also add as a jurisdictional matter if the breach is sufficiently serious then the question of jurisdiction also arises, but it is basically the first two.

In relation to there being insufficient evidence, if the Court pleases, normally in a case like this the court on the application for leave to serve would simply assess whether the case is reasonably arguable. It would then give leave for the parties to file, and especially the respondent, to file an affidavit. Now we never got to that stage because the question of the applicability of Hickman was never resolved. We were simply dealt with in the way that I have mentioned by Justice Williams.

Finally, the point needs to be made as well that section 9 itself does not, in terms, exclude the making of a bare declaration. It excludes just about everything else but not that and, consistent with this Court's decision in Ainsworth - - -

GAUDRON J: It says, "questioned or reviewed.....otherwise howsoever".

MR TILMOUTH: True, but if the Court pleases, it is noticeable, in our submission, and this may be significant in its proper construction, that it leaves out "declaration" whereas, in its concluding words it has:

prohibition, injunction, certiorari,

Now I do not necessarily pretend that that is decisive but it is an indicator that it is not meant to preclude a declaration. This Court has said in cases like Ainsworth, even accepting that royal commissions do not finally determine rights, people who come foul of the rulings of royal commissions due to the breaches of natural justice, are entitled to a declaration. That is - - -

GAUDRON J: Unless a privative clause provides otherwise.

MR TILMOUTH: That is true, but the privative clause only applies, to paraphrase this Court again in Darling Harbour, so long as the Hickman principle is satisfied and that is what we sought to agitate in the court below and we have not had a ruling on that issue. Simply, the ruling was the other way around. In effect, without very great reasoning, section 9 is so wide that it excludes everything in our submission. There has been no analysis at all of the points we sought to raise on at least two limbs of the Hickman principle, bona fides in the wider sense not necessarily mala fides, and in the sense of breach of the statutory condition, section 7 which I have already mentioned.

TOOHEY J: The Court will take a short adjournment to consider the course it proposes to follow.

AT 5.20 PM SHORT ADJOURNMENT

UPON RESUMING AT 5.23 PM:

TOOHEY J: The applicant seeks a grant of special leave in order to challenge a decision of the Full Court refusing leave to appeal from the order of Mr Justice Williams. Mr Justice Williams had refused the applicant leave to serve the respondents with a summons seeking a declaration that the report of the Hindmarsh Island Bridge Commission "in reporting adversely to the plaintiff and to certain Ngarrindjeri people failed to observe the requirements of procedural fairness".

Section 9 of the Royal Commissions Act (SA) precludes a challenge to any decision, determination by or act done in the course of a commission established under the Act. The respondents accept that the section must be read subject to the Hickman principle. However, the material furnished by the applicant does not afford any basis upon which the Hickman principle would operate in the circumstances of this case.

Accordingly, the proposed appeal would enjoy no prospect of success and the application must be refused.

AT 5.25 PM THE MATTER WAS CONCLUDED