Role of Counsel in Commissions and Inquiries

Introduction

1. Royal Commissions have been a feature of English law since the 11th Century. Prior to the authority of parliament they were the means by which the Sovereign might become informed on particular issues for decision making purposes. After the authority of parliament was established, and many of those functions in effect passed to parliamentary committees, Royal Commissions took the form with which we are now more generally familiar. It was that form that was adopted in Australia2 , the 19th Century being a period of the extensive use of Royal Commissions in England.3

2. Similarly, the office of Coroner is one of great venerability, dating back to the 12th Century.4

3. The position of counsel assisting in inquiries such as these has long been important. It has been described as “…standing in the shoes of the Attorney-General representing the public interest”5 in the conduct of a Royal Commission.

4. This paper focuses on the role of counsel assisting the various kinds of inquisitorial proceedings, of which two prominent ones have just been mentioned. In the interests of brevity the expression “inquiry” will be used generally as referrable to any form of inquisitorial inquiry, whether it be a Royal Commission, Coronial Inquest, or some other such inquiry. Similarly, the person or persons presiding at that inquiry and bound to make the determinations and report on it will be referred to as the “Commissioner”.

Typical forms of commissions and inquiries

5. The focus of this paper is on Royal Commissions constituted under the commissions of inquiry legislation that exists at the Commonwealth level6 and in each of the states and territories.7 Such proceedings are inquisitorial in nature.8 Like inquiries are now also conducted under the standing anti-corruption commissions in the Commonwealth9 and, where applicable, the states10, which commissions in the exercise of their powers to conduct public hearings, to some extent operate as standing royal commissions.

6. Like arrangements also obtain at inquests which are provided for in each of the Australian states and territories11 and tribunals and boards of inquiries, for example under statutes regulating commercial activity certain transport operations.12

7. Obviously there are many other inquiries convened by government and non-government organisation alike which are less inquisitorial in character and more investigative. With that may come, in an appropriate case, less rigor and formality in some of the matters discussed below.

8. In that connection, it will ultimately be a matter for the inquiry, and principally the Commissioner and her or his counsel assisting, to determine the procedures that are appropriate for the inquiry in question, practically limited only by the requirement to observe procedural fairness in respect of any person whose interests may be adversely affected by the conduct or outcome of such inquiry.13

9. Whilst not truly independent14, much of the gravitas and public respect attaching to Royal Commissions and other like inquiries is because there is typically both the perception and the reality that the inquiry will be conducted free from the direction of the executive government; and able to investigate matters and circumstances as they develop and present, rather than as the protagonists may define them, which is a feature of the determinative process within the judicial arm of government.

Appointment of counsel assisting

10. Whilst once typically the Crown Solicitor, or equivalent, would brief the counsel assisting15, the more contemporary position, at least for the last 20 — 30 years, is that the solicitors or legal officers for an inquiry are employed directly by the inquiry.

11. Obviously, the form that takes varies with the exigencies of the inquiry, and its magnitude. On some occasions a private firm of solicitors would be appropriate. On other occasions, for a long inquiry, the inquiry will employ its own legal staff.

12. Ultimately, the concern is to ensure that the solicitors so employed are not also at the same time bound to act in the interests of the government or its employee, nor are seen to be.

13. In those circumstances, at least under the current practice, the conception of briefing of counsel assisting is somewhat artificial. In reality, the Commissioner, or Commissioners, will in consultation with the government16, appoint one or more counsel assisting.

14. Ultimately, on a practical level, the appointment of counsel assisting will be by, or at least heavily influenced by, the Commissioner.

15. Typically, counsel assisting, once appointed, will then in consultations with the Commissioners and the government, set about the appointment of the balance of the inquiry staff. Obviously that will depend on the size of the inquiry. For a small inquiry it may be only a solicitor and some administrative support. In a large inquiry it may be a number of other counsel, numerous solicitors, investigators, accountants, police and administrative support staff.

16. Whilst there appears to be some history of it happening, there is no requirement for counsel assisting to seek leave to appear before the inquiry.17

Relationship between counsel assisting and the Commissioner

17. This topic is one upon which practice has varied considerably. At one extreme there have been inquiries where the Commissioner is intimately involved in the selection of the evidence to be led, the lines of inquiry to be pursued and the propositions to be advanced from it. However, that appears to be the minority position.

18. The more frequent position involves at least some circumspection between the Commissioner and counsel assisting in their dealings with each other. This matter reflects a natural reticence lawyers have to the independent fact finder being seen to engage privately with one of the protagonists before him or her.18

19. A middle ground position appears to be that expressed by Ashley J, as his Honour then was, in Firman as follows:

“ 26 Despite emphasis placed upon the independence of counsel assisting, the relationship between such counsel and a Commissioner could not be said to be analogous to that which exists between counsel and a judge. Counsel and the Commissioner have a common aim — furthering the necessary inquiry. Counsel is likely to make use of the investigative bureaucracy which commonly builds up around a Commission — for example, directing enquiries along particular lines. It is common for counsel assisting to indicate to the Commissioner in advance the substance of evidence to be adduced from a particular witness.”

20. There is however a significant body of experience where a very strict attitude was taken by the Commissioner – which was akin to the relationship of judge and counsel – whereby it was left entirely to counsel assisting the discovery, assembly and presentation of evidence with no input from the Commissioner. Examples are The Communism Royal Commission (1949)19, The Beach Police Inquiry (1975)20, The Lucas Inquiry (1977), The Gibbs Inquiry into Justice Vasta (1989) and The Gibbs Inquiry into Judge Pratt (1989).21 The stature of the Commissioners who have taken this stand in the past necessary commands careful consideration to depart from it.

21. To some extent this matter will be informed by the topic of the inquiry and the context in which it is occurring. In relation to most inquiries at least some circumspection will be appropriate in the relationship between the Commissioner and counsel assisting.

22. Obviously, for very practical reasons, there has to be some free and private dialogue between the Commissioner and counsel assisting for the purpose of organising matters such as hearing times and the like, and more generally so that the Commissioner can satisfy herself or himself that counsel assisting is conducting the investigations with due dispatch and consistently with the terms of reference.

23. However, beyond those matters care must be taken in such dealings.

24. A paramount consideration for the existence of the appointment of counsel assisting is so that the Commissioner does not have to “descend into the arena”.22

25. There is salutary reason for that, being to better ensure that the conduct of the inquiry, and ultimately the Commissioner’s findings, are viewed as being independent and dispassionate, on what will typically be topical and controversial issues.

26. It would obviously be corrosive of such confidence if the Commissioner and counsel assisting are, or are seen, to conduct much of the business of the inquiry in private, particularly in circumstances where other parties will be inviting findings that counsel assisting’s submissions not be accepted in some material respects.

27. Consequently, the more controversial the topic the more important that the perception and reality of independence be maintained.

28. It is a concomitant of this that it will be for counsel assisting to determine what lines of inquiries will be pursued, what witnesses will be called and what evidence will be elicited from them.

29. Ultimately, there should not be seen to be anything wrong with counsel assisting holding a different view of a particular matter or issue to that of the Commissioner. The utility of the inquisitorial procedure lies in the rigorous, independent and dispassionate testing and analysis of the evidence and propositions.

30. That would be impaired if the counsel who has the greatest knowledge of the matter felt constrained not to hold or express views at odds with the Commissioner.

31. Similarly, those objectives would be impaired if the Commissioner felt any awkwardness in rejecting submissions made by counsel assisting as she or he would from any other counsel appearing at the commission.

The functions of counsel assisting

32. The assembly and presentation of evidence necessary for the conduct of the inquiry devolves upon counsel assisting. It is to counsel assisting that all evidence is submitted, whether directly by members of the public or through the inquiry’s solicitors or secretariat.23

33. It is counsel assisting’s responsibility to correlate and present all of that material in a coherent and efficient way.24

34. It is the function of counsel assisting to provide an opening and closing statement to the inquiry.25 Particularly in the opening statements it is appropriate that counsel assisting exercise caution and restraint as to how the likely evidence is opened and of the propositions to be advanced. It is in the nature of the inquiry that it is investigating such matters to determine what the truth is. In that sense it differs materially from an opening in an ordinary civil or criminal case, where counsel delivering the opening is propounding a putative state of facts said to lead to a particular legal result.

35. An opening at an inquiry is about identifying an issue relevant to the terms of reference, the considerations that seem to fairly arise, and the evidence that will be called to elucidate them so that, at the end of the evidence, conclusions may be drawn.

36. Counsel assisting is, in addition to superintending the collection, analysis and collation of the evidence, also responsible for its presentation at the inquiry.

37. Not all evidence at an inquiry is given orally. Much of it, particularly uncontroversial factual accounts, will be reduced to statement, circulated to those parties with leave, and if there is nothing further to be gained the statement will simply form part of the material before the Commissioner for arriving at resolution of the issues with which she or he is charged to inquire into.

38. However, oral evidence is a highly important part of the conduct of an inquiry, and is the most recognised expression of the public and transparent character of its deliberations.

39. Counsel assisting will be responsible for superintending the selection of witnesses to give oral evidence, their order and, in larger inquiries, their allocation to different identified issues within the terms of reference.

40. Counsel assisting will be responsible for the calling of those witnesses. The orthodox view is that witnesses are first called and examined by counsel assisting. If the witness is represented by counsel, then the witness is next examined by her or his own counsel, and then cross-examined by any other counsel.26

41. Sir Gregory Gowan in the Land Deals Board of Inquiry (1977) went a little further and stipulated that cross-examination following counsel assisting would “…follow the sequence of those who are hostile or critical of the evidence preceding those who are in the same interests of the witness, unless special leave is granted. It seems to me to be only fair that allegations should be put forward in the first instance if they are directed against a particular witness and that general direction means that in the ordinary course of events counsel for the parties whom I will call collectively ‘the opposition leaders’ will follow counsel assisting the Inquiry. After any other counsel have cross-examined the witness, counsel assisting the Inquiry will have a winding up examination.”27

42. It is respectfully submitted that there is much cogency in Sir George Gowan’s approach, and for the reasons he identified. As a matter of fairness to a witness whose reputation and interest is at peril, particularly in such a public forum, such an ordering of the cross-examinations is astute to both expose that witness to the full rigor of the contrary points of view, but also give that witness a proper opportunity to confront the allegations made against him.

43. Whilst this is the usual practice in relation to the calling of witnesses28, it remains something that is in the discretion of the Commissioner as to what is expedient in a particular inquiry.

44. Notably, in that regard, there are occasions where a Commissioner may be persuaded in respect of a party whose conduct is the subject of serious allegations, and that party has been co-operative with the inquiry, for that party’s own counsel to lead her or him in chief, then to be followed by counsel assisting and the other witnesses and finally counsel assisting again. This was apparently contemplated in Sir Gregory Gowan’s intimation referred to above. If possible, this can be a highly important tool for a witness who wants to squarely confront the allegations made against him or her. Having your own counsel effectively lead you in chief is apt to provide (if done sensibly) a more cogent presentation of your side of events.

45. In Bretherton, Gillard J gives a useful summary of what is properly both required and expected of counsel assisting in dealing with the oral evidence, an expurgated version of it being as follows:

“Secondly, it cannot be denied that it is to the public benefit to investigate the serious allegations made, carefully and judicially, adopting practices observed in courts of law of enabling counsel perfect freedom of examination and cross-examination in an attempt, sometimes futile, to discover the true facts.

…

To assist to reach a just conclusion for such report, the practice is now well established of counsel appearing to assist a board. It is to the public benefit that in an inquiry of the serious character of this board counsel should be briefed to carry out the usual duty imposed upon an advocate.

…

What the effect the publication of statements made under statutory compulsion would have been in relation to the law of deformation was unnecessary to determine, since the same statute gave immunity to the witness’ statements made before the commission or board. But the feature of compelling a witness to give evidence with full protection for his statements introduces a new factor in proceedings before the board. As I have foreshadowed, the remarks by Lord Atkin on public policy must surely have regard to the obvious fairness and justice of ensuring that any witness who makes slanderous statements of another before the board should be closely tested in cross-examination by having competent and experienced counsel to assist the board in the presentation of the evidence before it.

…

These words are equally applicable to describe counsel’s role before a board of inquiry where witnesses protected from action are quite free to traduce anyone without any fear of consequences. To protect the reputations of innocent people from such attacks, counsel should use the utmost endeavour to arrive at the truth. This can only be done by fearless and robust advocacy.”29

46. As may be observed, counsel assisting has both the right to fearlessly and robustly both promote and test arguments, but equally an important obligation to apply those same skills to ensure that the reputation of those persons appearing at the inquiry are not improperly or unnecessarily harmed, and allegations that would do so are exposed to real scrutiny.

47. Counsel assisting also is responsible for a closing address. All of the above considerations about balancing robustness with fairness apply in equal measure. At least in contemporary practice, an extensive written closing address will be provided in advance of the oral addresses. This both saves time and promotes a fair opportunity to deal with any adverse findings being sought.

48. The role of counsel assisting in the preparation of the final report is an important one, but it has proper and important limitations. It is the statutory function of the Commissioner, and the Commissioner alone, to assess the evidence and make the findings.

49. Put another way, there is a dichotomy on the one hand between counsel assisting’s role of identifying and presenting the evidence and on the other hand, of the Commissioner in assessing and making conclusions on the basis of all of the evidence.

50. Consequently, any involvement that counsel assisting has in the preparation of the final report, which properly she or he will have, must be alive to that important distinction.

51. Higgins CJ, Crispin and Bennett JJ in Doogan summarised it as follows:

“The proposal for counsel to assist in writing the final report

…

[165] While, as Mr Tracey has suggested, a coroner cannot delegate his or her responsibility to weigh the evidence and make appropriate findings, that does not mean that he or she must write the report unaided. On the contrary, a coroner is entitled to have counsel assisting or an associate undertake a range of tasks, such as providing a summary of the evidence, an outline of the relevant statutory provisions and references to authorities.”

The dealings between counsel assisting and other counsel or solicitors involved with the inquiry

52. It is an atypical feature of litigation in the common law system for there not to be a proponent, who before the hearing sets out the facts asserted and remedy thereby sought, and a contradictor who, again before the hearing, states those matters disputed and why the remedy should not be granted, and any remedy in lieu thereof. It has been said that in a Royal Commission there is no lis.30

53. Thus, there is not the formulaic assembly of issues and parties with which counsel is familiar. The situation is more fluid.

54. Moreover, at the commencement of the hearing counsel assisting will not know, necessarily, what the outcome of the testing of the evidence is likely to be. Witnesses may choose to be uncooperative. Cooperative witnesses may be giving unreliable accounts that will only really be revealed by the cross-examination of other interested parties.

55. Further, counsel assisting will not have an opponent in the sense that ordinarily obtains in litigation. There will be a number of parties, with competing interests and competing points of view, some of which counsel assisting will be inclined to support, and some of which she or he will be inclined to oppose.

56. It is respectfully submitted that it follows that counsel assisting should in her or his dealings with all other counsel and solicitors take care to be seen to be even handed and dispassionate in dealing with the various parties, and in particular, reflecting what is so often reality, the ability to where appropriate be able to both agree with some aspects of a particular party’s position and disagree with others.

57. This may have an important practical consideration. There is well known recent history of the conduct of inquiries being enjoined by reason of a reasonable apprehension of bias as a result of the conduct of the Commissioner or one of them31, in the supervisory jurisdiction of the Supreme Court.32

58. However, it is the case that counsel assisting can, in an appropriate circumstance, conduct him or herself so as to give rise to a reasonable apprehension of bias on the part of the inquiry and put in peril the continued conduct of an inquiry. Ashley J, as his Honour then was, in Firman put it as follows:

“27 It is apparent from the submissions of counsel for the plaintiff that their client’s contention is that the conduct of counsel assisting could be relevant in two ways first, because the hypothetical observer would reasonably apprehend that partiality on the part of counsel assisting was likely to reflect partiality on the part of the Commissioner. Second, because if the conduct of counsel assisting was or reasonably appeared to be partial, and if the Commissioner appeared to condone that conduct, then the hypothetical observer might reasonably apprehend partiality on the part of the Commissioner.

28 In my opinion the conduct of counsel could be pertinent at least on the second footing. So, for example, if the conduct of counsel assisting showed an evident and persisting inequality of treatment as between witnesses espousing one view of matters under inquiry and witnesses espousing on (sic) opposing view, if one group of witnesses was apparently aided in giving its account of events whilst the other group was apparently frustrated in its attempts, and if a Commissioner either gave support to or took no action to redress the situation which unfolded before him, it would not be wrong to consider that support or inaction if an allegation of apprehended bias on the Commissioner’s part was raised by an individual whose conduct was under scrutiny. Whether a conclusion adverse to a Commissioner might then be drawn must depend upon the particular circumstances.

29 Failure by a Commissioner to act in such a case would be, I think, more significant than failure to intervene in the case of unfair cross-examination by counsel for a represented party. Yet in Carruthers, Thomas J (at 362) apparently considered that failure to intervene in the last-mentioned situation could be pertinent.”33

Dealings between counsel and the media

59. It is respectfully submitted that there is no orthodox role for counsel assisting to engage with the media coverage of a particular inquiry. Often such inquiries will occur in circumstances of acute media interest. The inquiry is typically in public and it is that very public character, where witnesses can be examined and cross-examined by representatives for a range of parties, that allow the investigation to be openly and transparently reported.

60. However, there appears to be a more recent tendency, although by no means invariable, for an inquiry to have its own media personnel. This is a particular feature of at least certain of the standing anti-corruption style commissions.

61. Evidently, minds differ as to the desirability or even appropriateness of this. However, if it is a course adopted, counsel assisting should ensure that it is conducted with circumspection and propriety. Plainly enough, the Commissioner will not be remaining above the arena if she or he becomes involved in managing or supervising any such events. Consequently, if there is to be any liaison with the media directly it is submitted that responsibility falls upon counsel assisting to ensure that it occurs in a responsible and measured way that would properly withstand scrutiny.

The putting by counsel of allegations of impropriety or of a sensational character

62. This is a matter that calls for special care and attention by counsel assisting. It is this particular skill, more than most others, that is an essential attribute of a good counsel assisting.

63. Inquiries, whether they be Royal Commissions, inquests or the like, will often be conducted in circumstances of intense public interest. Allegations of the most damning character will be being agitated by some. The subject of those allegations will often be stoutly denying them. The purpose of the inquiry will be to find resolution in relation to the controversy.

64. Moreover, the rules of evidence will not be required34, so to the extent they afford some protection to a particular witness, individual or entity’s reputation, they may not be present. I use the expression are not required; simply because counsel assisting is not constrained to adhere to the rules of evidence does not automatically mean that it is desirable that they be ignored. It is to be remembered that rules of evidence have developed not to make the resolution of factual controversies more difficult or less likely, but rather to promote the quality of the evidence upon which such findings are made by the objectives of fairness and ascertaining the truth through accurate fact finding.35

65. Further, unlike an ordinary piece of litigation, counsel assisting will not have the advantage that usually obtains in such situations of a client who is well acquainted with the relevant facts and has an interest in confiding them in her or his lawyers so that the case may best be presented.

66. Instead, counsel assisting will have a variety of sources of information, none truly her or his own client, many of whom may have a vested interest in slanting the perception of events away from any criticism of themselves, and necessarily, thereby pushing it onto others.

67. All of those circumstances militate to require much tact and discretion on the part of counsel assisting to ensure that allegations of impropriety or of a sensational character are properly investigated before resolving to put them. If they are to be put, then to put them fairly to those against whom they are made. This is necessary both so that the controversy can be resolved and such person can have a fair opportunity to respond to the allegations made against them.

68. The professional requirements for making such allegations are no less in an inquiry than they are in ordinary inter-party litigation.

69. In that regard, counsel assisting’s obligations as a barrister, and in particular those under the heading “Responsible use of court process and privilege” and “Prosecutor’s duties” in the Barristers’ Conduct Rules (2011) are engaged.

70. Counsel assisting has the general obligation in r 60 that any allegations made under privilege are reasonably justified, appropriate for the advancement of the case on its merits and not made principally to harass or embarrass a witness. To a like effect, r 63 would enjoin counsel assisting from urging a matter of fact unless believing on reasonable grounds that the factual material already available provides a proper basis to do so.

71. However, the most critical is r 64 which enjoins a barrister from alleging any matter of fact “…amounting to criminality, fraud or other serious misconduct…” unless the barrister believes on reasonable grounds that the available material by which the allegation could be supported provides a proper basis for it.

72. Sub-rule 64(b) requires obtaining the client’s instructions. Obviously, the counsel assisting has no client to obtain such instructions from. However, implicit in the appointment of someone independent to prosecute an inquiry is the consent to the pursuing of such allegations where it is proper to do so.

73. This heightens the obligation of counsel assisting to satisfy himself or herself of the propriety of putting such allegations.

74. Similarly, r 66 would enjoin counsel assisting from making suggestions in cross-examination on credit unless she or he believes on reasonable grounds that acceptance of the suggestion would diminish the credibility of the evidence of the witness.

75. Indeed, the circumstance in which inquiries often operate described above, make the need for attention to the efficacious discharge of the professional obligation likely more onerous rather than less onerous on counsel assisting.

76. Counsel assisting should never use the extent of public interest to prevail on a particular witness.

77. If allegations are to be put, particularly if they are attended with much publicity, counsel assisting needs to do so in a way that gives that witness a fair opportunity to meaningfully confront the allegation. This is particularly so where, typically but not always, the witness will not have had the advantage of having his own counsel lead him in evidence in chief.

78. Higgins CJ, Crispin and Bennett JJ summarised it thus in Doogan:

“Counsel “struggling” to put a case

[161] Mr Tracey argued that in relation to a number of issues counsel assisting had adopted an approach of questioning witnesses with a view to establishing that the responses from the Emergency Services Bureau had been deficient. He maintained that that approach had been characterised by the use of leading questions persistently and aggressively pursued in a manner that went beyond the permissible bounds for counsel assisting an inquiry of this nature. Several examples were cited of cross-examination in which it was submitted that Mr Lasry had been “struggling” to assert a particular position.

[162] Mr Tracey cited a decision of the High Court of Australia in Subramanian v R (2004) 211 ALR 1; [2004] HCA 51 affirming the longstanding proposition stated in R v Puddick [1865] 4 F & F 497 at 499; 176 ER 662 at 663 that prosecutors are to regard themselves as ministers of justice and should not “struggle for a conviction”. It should be noted that this principle does not absolve a prosecutor from the obligation to put the Crown case firmly to the jury and to test any case advanced on behalf of the accused, though he or she must do so temperately and with due regard for the primary duty to aid in the attainment of justice rather than to secure a conviction: see, for example, McCullough v R [1982] Tas R 43; (1982) 6ACrim R 274; Vella v R (1990) 2WAR 537; 47ACrim R 119. While the duties of Crown prosecutors and counsel assisting coroners are by no means the same, we accept that both should be guided by the overriding principle that their goal is the attainment of justice rather than the achievement of a preconceived objective. However, justice is not always, nor even usually, attained by a forensically passive approach in which counsel assisting eschew any responsibility to explore particular possibilities actively or to test assertions which may or may not be accurate. On the contrary, coroners are entitled to expect that counsel assisting them will actively pursue the truth and that will almost inevitably involve identifying particular possibilities or tentative conclusions and testing the evidence with a view to determining whether it can be confirmed or discounted.” (emphasis added)

79. The Barristers’ Conduct Rules, by r 94, in fact expressly apply to counsel assisting an inquiry the obligations on prosecutors under rr 82, 84 and 85.

80. Rule 82 obliges, in this case counsel assisting, to fairly assist the court to arrive at the truth, and to impartially seek to have the whole of the relevant evidence placed intelligibly before the court.

81. Rule 84 enjoins counsel assisting from, by language or by other conduct, seeking to inflame or bias the inquiry in relation to any person whose conduct is in question before it.

82. Rule 85 enjoins counsel assisting from arguing any proposition of fact or law that he or she does not believe on reasonable grounds to be capable of contributing to a finding of guilt and also to carry weight.

83. See also Royal Commissions and Boards of Inquiry at 220 — 221.

 

Peter Dunning QC

22 May 2013

End Notes

1. B. Com, LLB, Barrister in private practice.

2. Bretherton at 114 ls 10 — 30 per Gillard J.

3. See generally Royal Commissions and Boards of Inquiry pp 16 — 18.

4. Jamieson at 11 ls C — D per Sir Thomas Bingham MR, McCowan and Hirst LJJ.

5. Royal Commissions and Boards of Inquiry at p 215.

6. Royal Commissions Act (Cth) (1902).

7. Commissions and Inquiry Act (Qld) (1950).

8. Firman at [14].

9. Australian Crime Commission Act (Cth) (2002).

10. e.g. Crime and Misconduct Act (Qld); Independent Commission Against Corruption Act (NSW) (2002).

11. Coroners Act (Qld) (2003), Part 3, Division 3.

12. e.g. The discussion in Marine Inquiries.

13. Keating at [33] — [37] per Moynihan SJA; Firman at [10] per Ashley J, as his Honour then was.

14. Royal Commissions and Boards of Inquiry p 49.

15. See generally the discussion in Royal Commissions and Boards of Inquiry at p 211 — 214; Keating at [133] — [157] per Moynihan SJA.

16. Commissions of Inquiry Act (Qld) 1950 s 21; Royal Commissions Act (Cth) (1902) s 6FA.

17. Royal Commissions and Boards of Inquiry at pp 223 – 224.

18. See generally Royal Commissions and Boards of Inquiry pp 215 — 217; Keating at [133] — [157] per Moynihan SJA.

19. 24 ALJ 386 at 387, conducted by Sir Charles Lowe.

20. Royal Commissions and Boards of Inquiry p 216.

21. Marine Inquiries at p 70 footnote 76.

22. Mr Justice Ashworth at the Salmon Royal Commission, cited in Royal Commissions and Board of Inquiry at p 210 — 217.

23. Royal Commissions and Boards of Inquiry p 214.

24. Royal Commissions and Boards of Inquiry pp 214 — 215.

25. Royal Commissions and Boards of Inquiry pp 217 — 218.

26. Brisbane Hotel (No. 1) at 65 per Gibbs J, as his Honour then was; Royal Commissions and Boards of Inquiry p 215.

27. Cited in Royal Commissions and Boards of Inquiry p 218 — 219.

28. Keating at [29] and [31]; Moynihan SJA.

29. At pp 123 ls 5 — 10, 25 — 30, 124 ls 20 — 35, 125 ls 15 — 20.

30. Bretherton at p 122 ls 20 — 25 per Gillard J.

31. Keating and Carruthers.

32. Firman at [10] per Ashley J, as his Honour then was.

33. See more generally paragraphs [24] — [29].

34. Commissions of Inquiry Act (Qld) (1950) s 17.

35. Phipson at [1-07].

 

Bretherton — Bretherton v Kay & Winneke [1971] VR 111.

Brisbane Hotel (No. 1) — Royal Commission re: A Brisbane Hotel (No. 1) [1964] QWN 28.

Carruthers — Carruthers v Connolly [1998] 1 Qd R 339.

Doogan – R v Doogan; ex parte Lucas-Smith (2005) 157 ACTR 1.

Firman — Firman v Lasry [2000] VSC 240.

Jamieson — R v H.M. Cororner for North Humberside and Scuthorpe, ex parte Jamieson [1995] 1 QB 1.

Keating — Keating v Morris and Ors [2005] QSC 243.

Marine Inquiries — Dr White QC, Marine Inquiries, (1993) 9 QUTLJ 61.

Phipson — Malek et al — Phipson on Evidence, 17th Ed, Sweet & Maxwell, 2010.

Royal Commissions and Board of Inquiry — Hallett, Royal Commissions and Boards of Inquiry, The LawBook Co., 1982.