FEDERAL COURT OF AUSTRALIA

[2002] FCA 1411

FERGUSON v COLE

EXPLANATORY MEMORANDUM

1                     Each of the applicants is a member or official, or ex‑member or ex‑official, of the Construction, Forestry, Mining and Energy Union, Construction and General Division, New South Wales Divisional Branch.  The first respondent, the Honourable Terence Rhoderic Hudson Cole RFD QC (‘the Commissioner’) was by Letters Patent dated 29 August 2001 appointed to inquire into and report on certain specified matters in relation to the building and construction industry.

2                     Hearings have been conducted before the Commissioner as part of his inquiry.  The hearings have included hearings held in Sydney concerning the building and construction industry in New South Wales.

3                     On 5 August 2002 the Commissioner gave to the Governor‑General a document entitled ‘First Report’.  As at the date of the First Report evidence had been given in five states over 126 days by 445 persons.  The First Report did not address the specific evidence, material and submissions received by the Royal Commission but it recorded that the Commissioner was satisfied that material received by the Royal Commission ‘evidences’ practices and conduct which were unlawful or inappropriate in various ways.  The First Report foreshadowed that the Commissioner’s final report would recommend substantial reform, including the establishment of a national agency to monitor, investigate and prosecute breaches of industrial law, the criminal law and aspects of civil law in relation to the building and construction industry.  The First Report, for reasons outlined therein, recommended the establishment of an interim taskforce to continue investigations not completed by the Royal Commission and to monitor conduct and enforce industrial, criminal and civil laws pending consideration of the recommendations to be made in the final report of the Royal Commission.

4                     On 29 August 2002 the applicants made an application to the Commissioner that he disqualify himself from, in effect, making findings of fact or recommendations in relation to New South Wales which may have an adverse impact on the applicants.  On 6 September 2002 the Commissioner published reasons for his decision to dismiss the application made to him.

5                     In this proceeding the applicants claimed that the Commissioner has shown actual bias towards them or, alternatively, by his conduct has given rise to a reasonable apprehension that he is biased towards them.  They also asserted that they have been denied procedural fairness by reason of the process of inquiry adopted by the Royal Commission.

6                     The Court has dismissed the application made to it by the applicants.

7                     The Court rejected the contention that the Commissioner by the First Report made findings which directly and adversely affected the interests of the applicants.  The Court also rejected the contention that the First Report shows that the Commissioner is, or could reasonably be apprehended to be, so committed to conclusions which he has already formed that he would be incapable of altering those conclusions.

8                     The applicants also argued before the Court that the scope and nature of the task committed to the Royal Commission is such that a denial of procedure fairness to them is inevitable.  They further argued that the conduct of the Commissioner and Counsel Assisting the Royal Commission has been such as to demonstrate actual bias towards them or such as to give rise to a reasonable apprehension of bias towards them.  These arguments were also rejected by the Court.

9                     The Court noted that it was not the role of the courts to oversee the day‑to‑day conduct of a Royal Commission.  Relevantly the role of the Courts is limited to ensuring that the Royal Commission does not act in a way that destroys, defeats or prejudices a person’s rights, interests or legitimate expectations without according that person procedural fairness.

10                  This memorandum is intended to assist understanding of the outcome of this proceeding.  Such memoranda are commonly prepared by the Court in cases of general public interest, but they are not a substitute for the judge’s reasons which remain the only authoritative statement of the Court.

11                  The reasons for judgment and this memorandum will be available on the internet at www.fedcourt.gov.au after the delivery of judgment.

Federal Court of Australia

Sydney

20 November 2002