Bonan v Hadgkiss

REASONS FOR JUDGMENT THE COURT: 1 In July 2005, the appellant, a plasterer and ceiling fixer, worked for a subcontractor on a construction site in the central business district of Perth, known as the "CTA site". The appellant is, and was at the material time, a member of the Construction, Forestry, Mining and Energy Union (the Union). The respondent is a Deputy Australian Building and Construction Commissioner under the Building and Construction Industry Improvement Act 2005 (Cth) (the Act), and thereby authorised to investigate suspected unlawful industrial action. On 1 October 2005, the respondent commenced an investigation into allegations that the Union had incited the workers at the CTA site to take an orchestrated "sick day" on 8 July 2005. The respondent issued the appellant a notice requiring him to attend before the respondent and answer questions about the matter under investigation. On 30 November 2005, following the receipt of the notice, the appellant approached a legal practitioner, Ms Joanne Boots of Boots & Co, to represent him at the examination before the respondent. Ms Boots, however, had already represented another person at an examination conducted before the respondent as part of the same investigation. Further, on that occasion, the respondent had, at the conclusion of the examination, made a direction that neither Ms Boots nor her client, were to disclose to any other person the evidence given, nor the contents of the documents produced at the examination. 2 On 1 December 2005, Ms Boots wrote to the respondent asking him to rule prior to the appellant's examination, on whether the respondent would, in light of his previous direction, permit her to represent the appellant at the examination. The respondent advised Ms Boots that he would deal with the question of legal representation at the commencement of the appellant's examination. The appellant and Ms Boots attended before the respondent on 24 January 2006. After hearing submissions from Ms Boots and counsel assisting the respondent, the respondent determined that Ms Boots was not permitted to represent the appellant "at or in respect of an examination relevant to the investigation" in question. As a consequence of the direction given, the examination of the appellant was adjourned to a date to be fixed. 3 On 17 February 2006, the appellant commenced a proceeding in the Federal Court seeking a declaration that the respondent did not have power to exclude Ms Boots from representing the appellant at the examination or, in respect of the examination. 4 On 17 November 2006, Besanko J made declarations that the direction made by the respondent excluding Ms Boots from representing the appellant at the examination was within power, but the direction was beyond power insofar as it sought to exclude Ms Boots from representing the appellant in respect of the examination. Besanko J ordered that there be no order as to costs. 5 On 28 November 2006, the respondent wrote to the appellant advising him that his resumed examination had been scheduled for 12.30 pm on 15 December 2006. On 4 December 2006, the appellant filed a notice of appeal. No application was made to stay the orders of Besanko J. On 15 December 2006, the appellant attended for the examination before the respondent represented by another legal practitioner, Mr Cuomo, and the appellant was examined by the respondent. 6 On 5 February 2007, a solicitor acting on behalf of the appellant, wrote to the respondent's solicitors advising that Ms Boots was no longer engaged as a legal practitioner in private practice and that she was employed as a solicitor in the office of the Director of Public Prosecutions, and was, therefore, not able to act on behalf of private clients such as the appellant. The appellant's solicitor, however, contended that this circumstance did not affect the capacity of the appellant to pursue the appeal or of the Court to hear and determine the issues the subject of the appeal. 7 On 22 February 2007, the respondent filed a notice of motion seeking to have the appeal dismissed or stayed on the basis that the issue in the appeal had become moot, as the outcome of the appeal could have no practical consequence for either the appellant or Ms Boots. The appellant had in December 2006 attended the examination at which he was represented by another practitioner; and, in any event, Ms Boots was no longer in a position to represent the appellant. 8 As a general principle a Court should refuse to address an advisory opinion in respect of issues of which there is no longer a controversy between the parties (Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 355, at [47]). However, the Court retains discretion to continue to hear an appeal in circumstances where the subject‑matter of the appeal has been rendered moot by reason of a change in circumstances or otherwise (Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 438 (Long); Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54 (Al Masri); Hope Downs Management Services Pty Ltd v Hamersley Iron Pty Ltd [1999] FCA 1652 (Hope Downs)). 9 The appellant accepted that the Court had, in the present circumstances, a discretion to stay the appeal permanently, or to dismiss the appeal. However, the appellant submitted that the Court should not exercise its discretion to stay the appeal for the following reasons. Firstly, it was said that there remains an issue outstanding between the parties as to the entitlement of the appellant to his costs of the proceedings below that can only be resolved through the determination of the substance of the appeal. Secondly, the appellant contended that the appeal raises questions of practical application beyond the facts in this case. It was said that the decision under appeal was the first judicial consideration of the exercise of the compliance powers of the ABC Commissioner under the Act, and was being relied upon by the ABC Commissioner. It was also submitted that if the decision stood it may lead to the Union having to engage a number of different lawyers to represent its members at any examination conducted under the Act. 10 There is no limit on the considerations which may be taken into account in determining whether to exercise the discretion to continue to hear and determine the appeal where the only live issue between the parties is the costs order made below. However, the authorities show that the courts have had regard to the following factors in determining whether to exercise the discretion: whether the decision under appeal has ramifications which extend beyond the facts of the case in question and it is in the public interest that the issue be resolved (Al Masri); whether the decision under appeal reflects adversely upon the reputation of one of the parties and the determination of the appeal may serve to vindicate that party's reputation (Vanstone v Clark (2005) 147 FCR 299); whether a finding of bad faith by the decision‑maker has been made (Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431); whether there is doubt over the correctness of the decision under appeal (Federal Commissioner of Taxation v Industrial Equity Ltd (2000) 98 FCR 573 (IEL); Al Masri); the amount of judicial resources which would be taken in hearing and determining the appeal (IEL); and the costs issue (Long; Al Masri; IEL). 11 However, the presence of one or more of those factors does not mean that the discretion will be exercised in favour of hearing and determining the appeal. Each case must be considered on its facts. In Long the Full Court observed at [17] and [18]: Competing contentions about residual costs issues did not deter the Full Court in Hope Downs from permanently staying the appeal in that matter. We consider that the same course should be taken in this matter. We do not believe that live issues in respect of costs should result in an otherwise moot appeal proceeding to full hearing and determination. 12 As to the question of the issue having a wider importance, in Civil Aviation Safety Authority v Administrative Appeals Tribunal [2001] FCA 1319 (CASA), Cooper J at [17] observed: What CASA seeks in par 2 of the relief sought is in the nature of an advisory opinion or a direction to the AAT as to how it shall, by its members in all future matters, exercise the discretion under s 41(2) of the AAT Act in a particular way in respect of any reviewable decision under the Act. As between CASA and the AAT, the declaration sought involves no declaration of a legal right in actual controversy which the declaration would confirm or modify and which remains capable in a real and genuine sense to be enjoyed: Beitseen at 337‑338. It is insufficient that CASA has a genuine interest in having the legal issues resolved for the benefit of its administration of the Act in future cases which may arise. Those issues will, in an appropriate case, be resolved in litigation where they are real and will have a practical effect in respect of a controversy. 13 Further, in Hope Downs, the Full Court declined to accept the submission of counsel for the National Competition Council that the Court should hear an appeal, which was otherwise moot, because a decision would resolve a "very important issue of statutory interpretation". 14 We deal, firstly, with the appellant's contention that the discretion should be exercised in favour of hearing and determining the appeal because of the wider ramifications associated with the issue raised by the appeal, namely, the power of the ABC Commissioner to interfere with an examinee's right to choose his or her legal representative. 15 The controversy before Besanko J involved two separate issues, namely, the respondent's direction as to legal representation at the examination and, his direction as to legal representation in respect of the examination. As previously mentioned, Besanko J made two declarations: firstly, that the direction given by the respondent, precluding Ms Boots from representing the appellant at the examination, was within power; and, secondly, that the direction precluding Ms Boots from representing the appellant in respect of the examination was beyond power. 16 Senior counsel for the appellant foreshadowed that at any appeal he would submit that given the limited assistance which an adviser was able to give an examinee at an examination under the Act, it was anomalous that an adviser who had already appeared for one examinee, could advise another examinee in preparation for the examination, but not represent that examinee at the examination. On the face of it, that result is curious, but it does not mandate the conclusion that the trial judge erred in making the first declaration. Inherent in the argument is the possibility that the trial judge may have erred in making the second declaration. However, there has been no cross‑appeal by the respondent in relation to the second declaration. The consequence is that whilst an appeal court would have an opportunity to pronounce upon the decision made by Besanko J in relation to the first declaration, it would not have the opportunity to consider and pronounce upon the second declaration. The fact that an appeal court would be denied the opportunity of pronouncing authoritatively on the resolution of the apparent anomaly raised by the appellant undermines the utility of the court hearing and determining this appeal. In short, this appeal is not an appropriate vehicle for hearing and determining the wider issues arising from the proper construction of the Act, and the identification of the limits of the power of the ABC Commissioner to interfere in the right of a potential examinee to select a legal representative of his or her choice. 17 It was also submitted that the decision, if it stood, would have practical ramifications for the Union because it would have to engage different legal representatives to appear for those members of the Union who needed to be represented at an examination before the ABC Commissioner. In our view, this is not a consideration which, in light of the other relevant considerations referred to, would cause the discretion to be exercised in favour of hearing the appeal. The same limitations on the right to choose one's legal representative as Besanko J found to apply to examinees before the ABC Commissioner, also applies to examinees before other statutory investigative bodies, such as the Australian Securities and Investments Commission (Australian Securities Commission v Bell (1991) 32 FCR 517) and the Australian Crime Commission (Hogan v Australian Crime Commission [2005] FCA 913). While the decision of Besanko J stands, the members of the Union are, therefore, in no different a position to other persons called upon to attend an examination before other statutory investigative bodies. 18 As to the question of costs, no adverse costs order was made against the appellant. Besanko J ordered that there be no order as to costs. The costs, therefore, lay where they fell. The appellant has not deposed that he was obliged to bear any of the costs of the application before Besanko J personally nor that he would in any way be prejudiced if costs were not ordered in his favour. The position of the appellant is, therefore, different to that of a losing party at first instance who, unless the costs order was to be reversed on appeal, would be substantially prejudiced.