Firman v Lasry [2000] VSC 240

"(a) a reasonable apprehension of bias by the Commission; and (b) denial of natural justice and/or procedural fairness."

6. When the proceeding was commenced the plaintiff sought an order prohibiting the Commissioner from undertaking his inquiry altogether. That claim was evidently too wide, as counsel for the plaintiff immediately conceded when I raised the matter. Counsel for the second defendant submitted that the plaintiff had generally overstated his position; and that the relief initially sought was just part of that overstatement. But I consider that it was more probably the result of inadvertence.

9. The Commissioner, in accordance with established custom, announced that he would take no part in this proceeding, and indicated that he would abide the decision of the court. Whether the first part of that announcement reflected the fact was a matter in dispute, and one which I must later address. It is at least clear that the substantial defence to the proceeding in court was assumed by the State of Victoria, which it is convenient to describe simply as "the defendant".

14. Also before me is a summons filed 5 May by which the defendant seeks an order pursuant to Rule 23.01 that the proceeding be permanently stayed or dismissed on the grounds that it is scandalous, frivolous, vexatious or an abuse of the process of the court. Written submissions were advanced before commencement of the trial in support of this application. I decided that I could not resolve the application without, in effect, being fully apprised of all the evidence that was to be adduced. I deferred ruling upon it. At trial's end the Solicitor General, who led for the defendant, did not ask me to rule upon the application; but he submitted that principles raised in his client's submissions were pertinent to resolution of the proceeding generally.

19. The power of the Governor in Council to issue a Commission is made plain by s.88B of the Constitution Act 1975. That power was exercised on 21 December 1999. The Governor in Council relevantly commissioned Mr Lasry in the terms following:

"WHEREAS: A. 1. In April 1997, the Auditor-General transmitted to the Presiding Officers of the Victorian Parliament Special Report No 49 entitled 'Metropolitan Ambulance Service: Contractual and Outsourcing Practices' ('the Report'). 2. In the Report, the Auditor-General raised many concerns about the probity of contractual and outsourcing arrangements at the Metropolitan Ambulance Service ('the Service') during the period April 1993 to March 1995, and also reported on the absence of key documentation concerning critical management decisions of the Service which was sought to be examined during his audit. B. 1. Pursuant to the contract dated 7 June 1995 between Intergraph BEST (Vic) Pty Ltd (ACN 068 119 559) ('Intergraph'), the Hon. Patrick John McNamara MLA (for the Victoria Police Force and for the Victoria State Emergency Service), the Metropolitan Fire Brigades Board, the Country Fire Authority and the Service, Intergraph is obliged, in managing the new computerised ambulance dispatch system to which that contract relates, to meet certain Customer Specified Service Standards ('CSSS') which, in part, concern the time within which calls to Intergraph are answered. 2. Between June 1997 and July 1998, Intergraph staff may have been directed to make telephone calls to Intergraph at particular times, the purpose of which was to enable Intergraph to appear to meet certain standards included in CSSS. C. Certain requests under the Freedom of Information Act 1982 for the release of documents relating to contracts or outsourcing practices affecting the Service may have been dealt with otherwise than in a legal and proper manner. D. The Governor of the State of Victoria, in the Commonwealth of Australia, by and with the advice of the Executive Council has deemed it expedient that a Commission should issue to you in the terms set out below. NOW THEREFORE the Governor of the State of Victoria, in the Commonwealth of Australia, by and with the advice of the Executive Council and acting pursuant to section 88B of the Constitution Act 1975, appoints you, Lex Lasry QC to be our Commissioner. FOR THE PURPOSE of inquiring into and reporting upon the following matters: 1. Whether, in connection with what is described in the Report as the development and implementation of a computerised communications system for the Service, there has been illegal or improper conduct by any person or any other company, business, legal entity or agency including but not limited to:

(a) failing to disclose relevant documents when required to do so, or

(b) removal, secreting or destruction of relevant documents to avoid disclosure.

2. Whether, in connection with what is described in the Report as the consulting and outsourcing arrangements made for or on behalf of the Service including arrangements for any commercial review of the operation of the Service and its arrangements with Griffiths Consulting Pty Ltd, there has been illegal or improper conduct by any person or any other company, business, legal entity or agency including but not limited to:

(a) failing to disclose relevant documents when required to do so, or

(b) removal, secreting or destruction of relevant documents to avoid disclosure.

3. Whether, in connection with what is described in the Report as the other outsourcing arrangements made for or on behalf of the Service including:

(i) management information systems and subscriptions systems;

(ii) outsourcing of fleet management and maintenance;

(iii) outsourcing of non-emergency services.

there has been illegal or improper conduct by any person or any other company, business, legal entity or agency including but not limited to:

(a) failing to disclose relevant documents when required to do so,

or

(b) removal, secreting or destruction of relevant documents to avoid

disclosure.

4. Whether, in connection with:

(i) the arrangements entered into by the Service pursuant to which salary payments by the Service for the benefit of John James (sic) Firman or Donald Arthur Camerson were paid to Pinelow Pty Ltd;

(ii) the circumstances of the appointment by the Service and payments to Pinelow Pty Ltd to assist the Service with the management of changes within the Service and related training and development activities.

there has been illegal or improper conduct by any person or any other company, business, legal entity or agency including but not limited to:

(a) failing to disclose relevant documents when required to do so,

or

(b) removal, secreting or destruction of relevant documents to avoid

disclosure.

5. Whether between June 1997 and July 1998 any member of the staff of Intergraph was directed to make telephone calls to Intergraph for the purpose of enabling Intergraph to appear to meet certain standards included in CSSS or for the purpose of increasing the entitlements of Intergraph under its contract with the Service in any other manner.

6. If directions of the kind referred to in paragraph 5 hereof were given:

(a) by whom and to whom were such directions given;

(b) was the direction in breach of the contractual obligations of Intergraph;

(c) was the giving of the direction illegal or improper;

(d) whether the management of the Service and/or any department or agency of the State of Victoria were informed that such direction had been given;

(e) whether any action was taken as a result of any information referred to in paragraph (b) hereof by the Service and/or any department or agency of the State of Victoria;

(f) whether the making of telephone calls as a result of any such direction in fact resulted in Intergraph being able to appear to meet certain standards included in CSSS or in any way resulted in the entitlements of Intergraph under its contract with the Service being increased.

7. Whether there has been any illegal or improper failure by any person to release or disclose documents or any other improper conduct in relation to the following requests under the Freedom of Information Act 1982:

A. Request to the Metropolitan Ambulance Service

'All documents relating to the contracting out of non-emergency ambulance services including any contracts entered into, work descriptions, expressions of interest, invoices, and amounts paid.'

'All documents since 3 May 1994 relating to the contracting out of non-emergency ambulance services including any contracts entered into, work descriptions, expressions of interest, invoices and the amounts paid.'

'All documents since 22 December 1994 relating to the contracting out of non-emergency ambulance services including any contracts entered into, work descriptions, expressions of interest, invoices and amounts paid.'

'Any documents from the Minister for Health, the former Minister for Health Mrs Tehan, any of their staff or the Department of Human Services (or Department of Health and Community Services) relating in any way to the ministerial briefing note of 19 February 1996 (attached) including (but not limited to) any advice in relation to the four ministerial briefing notes relating to contracting out non-emergency stretcher transport referred to in paragraph 3 of the ministerial briefing note of 19 February 1996.'

'All documents relating to the four ministerial briefing notes referred to in paragraph 3 in the ministerial briefing note of 19 February 1996 (attached) including any internal memoranda advising that the four ministerial briefing notes had been located, any memoranda relating to the proposed release of the four ministerial briefing notes, any instructions or memoranda in relation to the non-release of the four ministerial briefing notes, any documents explaining why the four ministerial briefing notes were not released, any legal advice in relation to the ministerial briefing notes, and any file records, diary notes or other records in relation to the four ministerial briefing notes.'

'All documents relating to the legal advice given by Mallesons Solicitors in or about February 1996 in relation to four Ministerial Briefing Notes relating to non-emergency transport which had not been revealed at the Administrative Appeals Tribunal hearing at which the MAS had proposed to release to me in March 1996.'

'all documents relating to the Victoria Police investigation into the integrity of processes used by the Metropolitan Ambulance Service during 1993-1995 to implement major outsourcing and other contractual arrangements. The material we seek includes briefs of evidence forwarded to the DPP.'

8. If any illegal or improper failure is found to have occurred in relation to any of the requests specified in paragraph 7, you may inquire as to whether there has been any illegal or improper failure by any person to release or disclose documents relating to contracts or outsourcing practices affecting the Service and required to be released pursuant to other requests under the Freedom of Information Act 1982.

9. Whether there has been any illegal or improper conduct in dealing with the Ministerial Briefing Note from the Service to the Minister for Health dated 19 February 1996 and the attachments thereto.

AND WE direct you to make such recommendations arising out of your inquiry as you consider appropriate, including recommendations regarding any legislative or administrative changes that are necessary or desirable."

30. On 16 May 2000, during the period of the trial, the terms were amended by excluding term 8; and a minor correction was made to term 3.

33. On 30 May 2000, after I had reserved my decision, the terms were further amended by extending the date by which the Commissioner must report to 1 December 2000, by deleting term 3, and by altering term 7.

36. The Solicitor General foreshadowed the last set of amendments on 22 May. In the course of doing so he told me that he was instructed that the Government would review the funding of parties who had been granted legal assistance, subject to further application (being made) by those parties for additional funding.

39. The matters for inquiry have a connection, in one way or another, with the Metropolitan Ambulance Services ("the Service"). The Commission established by the Letters Patent is conveniently described as the "Commission".

44. It was common ground between the parties that the Commission (in which term I include the Commissioner except where I draw some specific distinction) is susceptible to the supervisory jurisdiction of this court. Specifically, the court has jurisdiction to make an order in the nature of prohibition restraining the further conduct of a Commission. It could do so if apprehended bias, as the law understands that concept, was established against a Commission, or if a Commission was shown in some other way to have denied natural justice to some interested party; for it was common ground that a duty to accord procedural fairness (a term interchangeable with natural justice) is imposed on an investigative body such as a Commission, whose power to report is capable of damaging or prejudicing a person's rights, interests or legitimate expectations, which rights and interests include protection of reputation. See, generally, Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564; The Queen v Carter and the Attorney General (Full Court of the Supreme Court of Tasmania, 23 October 1991, unreported); Independent Commission Against Corruption v Chaffey (1992) 30 NSWLR 21; Carruthers v Connolly [1998] 1 Qd R 339 and Gibson v O'Keefe (Einstein J, Supreme Court of New South Wales, 20 May 1998, unreported).

47. Section 21A of the Evidence Act 1958 does not impact upon those conclusions, as Thomas J decided in the context of the somewhat similar s.20 of the Commissions of Inquiry Act 1950 (Qld) in Carruthers at 377-381. The apparent purpose and likely area of application of s.21A is discussed in Hallett, Royal Commissions and Boards of Inquiry (1982) at pp.309-319.

50. The requirements of procedural fairness are that tribunals afford a hearing to individuals whose interests are or may be affected by their decisions, and that decision-making be free from actual or apprehended bias.

53. The content of those requirements may vary according to the particular circumstances of the case. Circumstances include "the nature and general function of the entity required to observe them and the relationship between that entity and the person to whom the procedural fairness must be allowed": Gibson at 42; see also Carruthers at 371-372, Carter at 8, 10-12, and Cornall v AB [1995] 1 VR 373 at 393-402.

56. A Royal Commission is inquisitorial in nature (that is so even if - as texts propose - its character is described as "investigatory" rather than "inquisitorial"). A Commissioner is required to inquire into and report upon specified matters. Statute gives a Commissioner extensive powers to compel the giving of evidence and the production of documents. Such considerations provide the context within which compliance with or departure from the rules of procedural fairness must be considered - a point well-made, in my respectful opinion, by the Full Court in Carter at 10-12.

59. In the present case, as will be seen, the plaintiff's contention that the Commission has denied (him) "natural justice and/or procedural fairness" very substantially overlaps his contention that the Commission has so conducted itself that there is reasonable apprehension of bias. It is to the application of the latter concept that I now turn.

62. The test of apprehended bias is this: are the circumstances such that a party or a fair-minded and informed member of the public might entertain a reasonable apprehension that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the issues before him (or her)? See Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294. The formulation in Livesey has been often cited. See, for example, Re Polites & Anor; ex parte the Hoyts Corporation Pty Limited & Others [1991] HCA 25; (1991) 173 CLR 78 at 85 per Brennan, Gaudron and McHugh JJ, and Webb v R [1994] HCA 30; (1994) 181 CLR 41 at 67-68 per Deane J. Sometimes the test has been framed as an enquiry whether a reasonable bystander "would" reasonably entertain an apprehension of bias: see, eg, Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 99-100 per Gaudron and McHugh JJ), Carruthers at 356, 371; see also Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 per Mason J. In this State, at least, the Livesey formulation stands: Gascor v Ellicott [1997] 1 VR 332 at 342.

65. Although the classic formulation of apprehended bias refers to "the parties or the public", Deane J pointed out in Webb (at 68) that "the test is an objective one and the standard to be observed in its application is that of a hypothetical, fair-minded and informed lay observer. That being so, it is convenient to frame the test itself in terms of reasonable apprehension on the part of that particular inhabitant of the common law". Only one enquiry is necessary. It is framed by reference to the hypothetical observer. An enquiry framed by reference to a party could yield no different result.

68. It is next clear that, whilst the civil standard of proof applies, a court should not lightly conclude that an allegation of apprehended bias is made out. Reasonable apprehension must be firmly established: R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 at 553-554, Re Lusink; ex parte Shaw (1981) 55 ALJR 12 at 14 per Gibbs ACJ, Laws at 100 per Gaudron and McHugh JJ; see also Gascor at 342 per Tadgell JA.

71. The reasonable apprehension must be of a partial or prejudiced decision, not of a decision adverse to the prosecutor: Re JRL at 352 per Mason J.

74. The attributes of the hypothetical observer, and the circumstances that he or she must be regarded as taking into account, are described at length, with pertinent citations, in Gibson at 52-56. The broad thrust of the proper approach is clear enough; see at 56. I need not repeat it.

77. The hypothetical observer should be assumed to base his or her opinion on a fair assessment of the whole of the tribunal's conduct in the context of the whole trial or inquiry. See, for example, Galea v Galea (1990) 19 NSWLR 263 at 279 per Kirby ACJ and at 283 per Meagher JA, Wentworth v Wentworth (Santow J, Supreme Court of New South Wales, 6 February 1998, unreported, cited in Gibson at 58-59), and (in the context of the conduct of a Commission of Inquiry) Carruthers at 358.

80. I agree with the observation of Thomas J in Carruthers (at 356) that it is not to be expected that a Commissioner appointed to inquire into and report upon matters which are highly politically charged should be "devoid of a sense of social, political, moral or economic direction; and that the main question in the end will be whether a commission is reasonably open to persuasion and seen to be so". That observation was quite consistent with the evidence given by Sir Edward Woodward in this proceeding. Sir Edward, almost certainly the most experienced person in Victoria in conducting and assisting Royal Commissions and Boards of Inquiry, said that "you never really come to a task like this with a completely blank mind ... you obviously have your own ideas ... what you have to be very careful about is that you put them to one side and don't allow them to affect your judgment as the evidence is adduced".

83. I agree, on the other hand, with the observation of Thomas J that the hypothetical observer would be likely to be concerned if, in a Commission raising matters which were highly politically charged-reflecting a divide between the main political parties - a Commissioner was thought to harbour political prejudice. In such a case, his Honour said, (at 356-357) "it (is) important that anyone appointed to the inquiry be seen to be a commissioner, not an executioner."

86. In considering an allegation of apprehended bias made against a Commissioner, consideration may need to be given to the role of counsel assisting.

89. At least by 1919, according to Hallett, "the practice to have counsel assisting was apparently well-established". The role of such counsel has been said to be to assist in the elucidation of facts, to present material to the Commission in an orderly fashion, to examine witnesses independently without the Commissioner having to descend into the arena. See Hallett at pp.210-211 and Bretherton v Kaye and Winneke [1971] VicRp 12; [1971] VR 111 at 123. Counsel assisting is said by Hallett (at 215) to stand "in the shoes of the Attorney-General representing the public interest."

92. 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. The closeness of the working relationship between counsel assisting and a Commissioner may well be illuminated by what transpires at public hearings of the Commission. In the present case the transcript of those hearings discloses, in a large number of instances, the apparent closeness of that relationship. The Commissioner, evidently referring to counsel assisting and himself, has very frequently used the term "we" when speaking about things done or to be done.

95. 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.

98. 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 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.

101. 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.

106. The Solicitor General submitted that, in considering whether a person has been accorded procedural fairness, the decision-making process must be viewed in its entirety. He referred in this connection to Ainsworth and to South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378 at 389. Those cases concerned the right to be heard. Counsel submitted that the Commission's work was far from completed, and that no proper evaluation could presently be made whether the plaintiff had been denied procedural fairness.

109. The questions whether and when there is a right to be heard, and the content of that right in a given case, raise issues which are not identical to those which must be considered when apprehension of bias is alleged. Nonetheless, in cases of the latter type observations have been made along the lines of those made in Ainsworth and O'Shea. I have earlier referred to some of the authorities. Notwithstanding those observations, in cases of apprehended bias a conclusion adverse to a Commission or Board has sometimes been reached before an inquiry has been completed. I do not doubt the correctness, in general, of the Solicitor General's submission. But I think that it is subject to qualification, most particularly in cases of apprehended (a fortiori, actual) bias.

114. It is a feature of each of terms of reference 1, 2 and 4 that they refer to "illegal or improper conduct including but not limited to" failure to disclose relevant documents when required to do so, or the removal, secretion or destruction of such documents to avoid disclosure. Those terms focus upon absence (to use a neutral word) of documentation.

117. Terms 1, 2 and 4 are not, however, so confined. In the case of each of those terms the Commissioner is enjoined to inquire whether there has been "illegal or improper conduct" at large.

120. Up to the time when this proceeding commenced the Commissioner had given no indication what meaning, preliminary or otherwise, he considered should be given to the concept "improper conduct" - a concept left undefined by the terms of reference. That was so despite requests made by counsel for more than one represented party that he do so.

123. On 10 May, that is, after the proceeding had first been mentioned before me, but before the trial commenced, the Commissioner delivered a "Preliminary Ruling as to the Meaning of Improper Conduct." The meaning he accorded that term was, as will be seen, very wide. I should mention, in a preliminary way, two matters in that connection.

126. First, terms 1, 2 and 4 require the Commissioner to inquire whether there was improper conduct "in connection with" a described matter or matters. The phrase "in connection with", in a statutory context, has a broad reach. The Commissioner might consider that some such application should be accorded the phrase where it appears in the terms of reference. Having regard to the preliminary meaning which he has attached to the phrase "improper conduct", consideration whether such conduct took place "in connection with" a described matter or matters would seem likely to give rise to a very wide investigation. That could be expected to impact upon the amount of evidence - oral and written - which would be potentially relevant. In that context, the original requirement for the Commissioner to report by 5 July created an intolerable situation. That deadline now having been removed, one potential issue of denial of procedural fairness has been removed.

129. Second, the plaintiff complains that the preliminary meaning given to the term improper conduct is too wide, and imprecise. Far from defining what could be relevant, it expands the ambit of relevance to a point where it is meaningless. Of this, more later.

134. The allegations of reasonable apprehension of bias by the Commission and other denial of procedural fairness are particularised by the Originating Motion as it was amended at trial. Some thirty matters, in all, are raised, although there is overlapping. It is to be noted that, insofar as the Particulars address apprehension of bias, they do so by alleging "the existence of a reasonable apprehension of bias by the Commissioner", which allegation the Particulars then expand upon.

137. In addition to, or in expansion of, allegations made by the Particulars a number of matters were raised by the plaintiff in one or more of the affidavits of his solicitor, Mr McCabe, in an "Outline of Plaintiff's Case" and in a document entitled "Points of Principle raised by Firman's Application". The latter two documents were handed to me before trial as an aid to understanding the plaintiff's case.

140. Not all the matters eventually particularised or raised by Mr McCabe's affidavits or mentioned in the two documents to which I referred a moment ago were known to the plaintiff when this proceeding was commenced. A number of circumstances upon which the plaintiff relied, indeed, arose after that date. It does not follow that the plaintiff's claim lacked bona fides for that reason.

143. The plaintiff abandoned at trial reliance upon a few of the matters raised. According to the defendant's submission those matters were either far-fetched or (in several cases) involved serious but unfounded allegations against one or more of the Commissioner and counsel appearing before him. That was said to show how unrealistic and threadbare the plaintiff's case really was.

146. In my opinion there was something to this submission. I will say more about it in particular contexts. But from my standpoint the particularisation of the claim (I use the word "particularisation" in its widest sense) principally gave rise to a different problem. It made the task of separating the wheat from the chaff difficult and time-consuming.

151. Counsel for the defendant submitted that the fact that only the plaintiff has brought this proceeding was a guide to the insubstantiality of the complaints which were made. Other represented parties could have been expected to join in the proceeding, or bring their own proceedings, had their perception of events occurring at the Commission been the same as the perception of the plaintiff. Indeed, the plaintiff was bringing a proceeding complaining, inter alia, about the treatment accorded to another represented party - that is, Dr Paterson. Yet that party had not himself brought such a proceeding.

154. There is something to this submission; but I do not consider it to be of much significance in resolving the matters which the plaintiff has raised. The course taken by particular parties who appear before a Commission is likely to depend upon considerations which may, but will not always, be apparent. It would be unwise to speculate why a particular represented party has taken one course rather than another. In the case of Dr Paterson, I should add, the submission made by his counsel in connection with the "Represented Parties' Charter" could scarcely be said to be a ringing endorsement of the Commission's conduct. Remember also that, in the context of apprehended bias, the touchstone is the informed observer - not a party whose conduct may be influenced by tactical or other considerations.

The Forbes matter: paragraphs 1.1(l) and (t), 1.2(d) of the Particulars

159. Mr Mark Forbes, a journalist employed by "The Age", wrote an article which appeared in that newspaper on 14 March 2000 - that is, the day before the Commission began its public hearing of witnesses. In part the article said this:

"Commission sources are confident that criminal charges are likely to be laid on the strength of evidence gathered so far."

163. Then followed a reference to "the key terms of reference", which were said to include "the letting of millions of dollars in MAS contracts, Intergraph's emergency despatch contract ... (and) ... the employment of Mr Firman".

* the Commission issued a press release in which its secretary was quoted as saying, inter alia, that "The Commissioner has no view about the laying of charges against anyone ... I do not understand how these conclusion (sic) could be formed, as the ... Commission is yet to hear evidence from key witnesses ... . The Commissioner will rely on the evidence of key witnesses ... ."

* Counsel assisting the Commission, at a public hearing, repeated the substance of the matters set out in the press release; and added, as is the case, that the laying of criminal charges was a matter for the police and/or the Director of Public Prosecutions in consultation, and had nothing to do with the processes of the Commission per se.

* The Commissioner said at the public hearing that he endorsed the remarks of counsel assisting and the content of the media release.

* The Commission required Mr Forbes' attendance to give evidence and produce documents. He appeared by counsel at a hearing which the Commissioner ordered should be closed. In the course of that hearing counsel assisting submitted that three issues arose: first, the need to afford procedural fairness. In that context he reiterated that he knew of no conclusion that there was evidence upon which persons could or should be charged. Second, the desirability of obtaining such evidence - if it existed in the hands of a "Commission source". Third, what he described as the obligation of the Commission to protect the integrity of its own processes.

173. In the course of the hearing the Commissioner said this (at RCTr 294).

" ... this whole issue this morning is a matter of some considerable concern to me and I am, without having heard you so far, determined that I'm not going to have this debate about whether there is some inappropriate source in the Royal Commission; I'm not prepared to have that debate at the moment taking place as, in effect, a media spectacle. This is not a debate in my view that is appropriate to be had in the public gaze. That may change at some stage in the future but at the moment, as Mr Howard has just said, we are endeavouring to protect our process. We are extremely concerned that the parties of this commission may have some view as a result of the article that we have already formed a biased view. We haven't, and at this stage at least it seems to me it is inappropriate to have a debate about that in public before we have actually embarked on the substantive evidence".

177. His references to "we" appear to have been a reference at least to himself and counsel assisting. Contrast his use of the personal "I".

180. In the event, the closed hearing was adjourned to 16 March, no evidence being taken from Mr Forbes.

183. On 15 March counsel assisting revisited the matter in a public hearing of the Commission. He mentioned the three issues of importance that he had identified in the closing hearing the day before, and indicated that a confidential hearing had commenced, a summons having issued "to an individual".

186. On 16 March senior counsel for Mr Forbes spoke to senior counsel assisting. He sought to persuade the latter that the Summons had been issued for an improper purpose. He told senior counsel assisting that on his instructions "Commission sources" did not refer to the Commissioner, any of counsel assisting, and (probably) the solicitor to the Commission. He also told senior counsel assisting that Mr Forbes would say, if asked, that there was a source within the Commission; but that he would refuse to name the person.

189. That same day the closed hearing resumed. Mr Forbes gave evidence. He said that he had had contact with Mr Bowles, the Commission's "director of investigations", supplying the latter with information and documents. In connection with the critical portion of the 14 March 2000 article he said that -

* "It reflects opinions that were made to me by persons associated with the Commission".

* "It reflects conversations of that nature with people inside and outside the Commission".

* "Commission sources" had a broader meaning than simply meaning people working for the Commission.

* Insofar as the term referred to someone working inside the Commission "We are talking about one person".

* Information had been given by the person "to (the) effect" that he or she was confident that criminal charges were likely to be laid on the strength of evidence gathered so far.

* Neither the evidence itself nor the likely charges had been detailed by the informant.

* He could not say that the exact words used in the article were used. He had kept no notes. He did not think that the word "confident" was used, just that was the impression which he gained.

* Neither the Commissioner nor any of counsel assisting was the "source" within the Commission. Beyond that he declined, on the advice of counsel, to answer questions which would or might have revealed the identity of his informant.

200. The basis upon which, as I understand it, Mr Forbes refused to answer questions was that they related to a matter outside the Commission's terms of reference. In that connection the Commissioner observed (at RCTr 341-342):

"You understand that I take the view that it is impossible, probably theoretically and certainly practically, to segment the conduct of the inquiry from its process and the duties of the Royal Commission to accord the procedural fairness that we have to accord. They are inextricably connected as far as I'm concerned ... ".

204. As at 16 March the question was left open whether the Commissioner would exercise his power under s.20 of the Evidence Act 1958 to certify the facts to a law officer.

207. On 17 March 2000 there was a telephone conversation between senior counsel for Mr Forbes and senior counsel assisting the Royal Commission. The latter said that the Commission was pleased that this was not a case of someone "handing over documents etc to a journalist and that maybe the Commission would see how things went for one to two months to ensure that there was no continuing adverse problem."

210. On 21 March counsel for the plaintiff sought access to the transcript relating to Mr Forbes' attendance before the Commission. He submitted that whilst the matter involved the integrity of the Commission processes it also directly affected the interests of the plaintiff.

213. The Commissioner refused the application. This is what he said:

"Mr O'Bryan, there is no question of fairness. The commission took some steps which followed an exchange between Mr Howard and myself where we endeavoured to make our position in relation to the matter clear. The commission appropriately took steps in confidential session to protect its own process. That has been occurring. I do not propose to circulate the transcript of that for the moment. I do not see any reason why the other parties need to be involved in it or need to be aware of it, except for me to say to you that the object of the exercise was to ensure that our processes were protected and that in the future allegations that there was some bias on the part of the commission would not be made. I should say, the only thing that affects your client really is whether or not there is a basis to believe that I, for example, have already formed some view about people being charged with criminal offences. I have said a number of times, I don't have any such view."

217. On 22 March 2000 Mr Bowles, the Commissioner's director of investigations, was directed by counsel assisting to interview all existing and past Commission staff in connection with the matter. Over some undefined period more than 100 persons were interviewed. Mr Bowles himself made a statement. No-one admitted to comment of the type described by Mr Forbes (see RCTr 3680-3681).

220. On 23 March 2000 - a time at which it is inconceivable that all the interviews could have been completed - the solicitor to the Commission wrote to Mr Forbes' solicitors. In part he said this:

"It is the Commissioner's view that, prima facie, circumstances exist which justify a referral to a law officer under Section 20(1) of the Evidence Act 1958. As was made clear to your client in both hearings at which your client was present, it is important that the parties to the Commission and the public at large have faith in its independence. The article written by Mr Forbes improperly jeopardised that perception. His position has been compounded by his refusal, without lawful excuse, to answer questions when directed to do so. Nonetheless, the Commissioner informs me that he proposes to defer such a referral under Section 20 of the Act for a period of 3 months. In the event that no further reason for complaint arises against Mr Forbes in that period, the Commissioner may determine to take no further action. It should be clearly understood that the purpose of such a deferral is not to inhibit the proper and independent reporting of the conduct of the Commission and the surrounding circumstances but rather to protect the Commission's process. In view of Mr Forbes' evidence I would ask for The Age to publish a statement which makes it clear that insofar as Mr Forbes' article tended to suggest that the Commissioner, Counsel Assisting or the Solicitors to the Commission had already formed an adverse view of any parties or witnesses before the Commission, such a suggestion is acknowledged to be wrong and is specifically withdrawn."

224. The course of which notice was thus given was the course adverted to by senior counsel assisting in his conversation with senior counsel for Mr Forbes on 17 March.

227. On 31 March counsel for the plaintiff presented the so-called "Represented Parties Charter" to the Commission. By paragraph H it raised the Forbes matter - seeking access to the transcript of any confidential hearings as well as provision of other information.

230. On 7 April the Commissioner, in a ruling concerning the charter, said that on 14 March he and senior counsel assisting had made it clear that the key assertion in Mr Forbes' article was false. He went on:

"The Commission has also taken steps to endeavour to prevent any recurrence of such publicity, recognising that such publicity is inappropriate and may be adverse to the interests of the Commission and the parties. I do not propose to involve the other parties in the Commission's internal inquiry or to grant them access to the transcripts ... ".

234. This proceeding was commenced on 12 April. It complained, inter alia, of the Commissioner's refusal to give the plaintiff access to transcripts of the confidential hearings and of "the results of his confidential investigation into the Forbes article".

237. On 27 April (following notification on 19 April) the Commission held a sitting in which it dealt only with the Forbes matter. To emphasise the point, it had last sat publicly on 14 April.

240. Senior counsel assisting described the purpose of the sitting this way:

" ... the particular purpose is to firstly inform the parties and the public generally as to the nature and the results of the investigation conducted into this particular article, the investigation that is conducted by the commission and, secondly, to refer to and release the transcript of the in-camera examination of Mr Forbes, both to the parties and the public generally via the transcript on the net."

244. He described the sitting, a little later, as "an information session".

247. He gave an explanation why the transcript of the confidential hearing should be released. It was that the Commission's investigation had been completed.

250. One reason for the sitting was, he said, that "The Age" had not published a statement (as the Commission had requested on 23 March) making it clear that Mr Forbes' article was not intended to suggest that the Commissioner, counsel assisting or the solicitor to the Commission had formed an adverse view of any parties or witnesses.

253. Senior counsel assisting ended his presentation by expressing a number of conclusions. Thus (RCTr 3683-3684)

"May I turn now to some conclusions. Having regard to the evidence of Mr Forbes and the results of the internal investigation conducted by the commission, I am of the opinion that no person employed by the commission qualifies as a 'commission source' or has communicated information to Forbes to enable him to say as he did: 'Commission sources are confident that criminal charges are likely to be laid on the strength of evidence gathered so far.' Mr Forbes himself acknowledges that his assertion was based on his interpretation of opinions expressed by a number of persons associated with the commission, as he put it. He is apparently unable to quote any conversation verbatim. He does not suggest that he has any notes or documentation of relevant conversations. As he says, he often attempts to engender 'a degree of vagueness' about the identity of his source in order to protect its identity. That was at transcript 322. Importantly, Mr Forbes does not suggest that he was the beneficiary of any unauthorised disclosure of documentary material or evidence. Rather, he relied upon his interpretation of, as he put it, general opinion being expressed by a number of persons, only one of whom he alleged worked for the commission. Of even greater significance, Mr Forbes and his counsel concede that there has been and is no prejudgment by the commissioner or counsel assisting. This concession on the part of Forbes lays to rest, in my opinion, any suggestion of apprehended bias on the part of the commissioner or the commission. I consider that appropriate steps have been taken to protect the integrity of the commission's processes and to ensure that the parties can be assured of procedural fairness, both in the hearings and in respect of the commission's inquiry more generally. I am satisfied that extensive inquiry which has now been conducted reveals no evidence that any person working for the commission has in any way provided information or encouragement in support of the Forbes assertion."

257. Senior counsel for the plaintiff then complained about what he said was a "self-serving statement for the record". The Commissioner declined to debate the matter.

260. In addition to the matters so far set out, a number of other facts should be taken to be known to the hypothetical observer in connection with the Forbes matter.

263. First, the obvious fact that terms of reference 1, 2 and 4 raise for investigation matters which have been the subject of public agitation and allegation concerning the plaintiff's role for a long time.

266. Second, the Auditor General's report dated April 1997, referred to in recital A to the terms, made both specific and oblique reference to the plaintiff. The foreward to the Report, and paragraphs 1.6, 1.8, 1.11 and 1.12 might easily be read to suggest that hindrance to the Auditor General's work because coercive powers were unavailable to him had precluded a conclusion being reached that "senior management" of the Service had engaged in corrupt activity rather than serious mismanagement.

269. Third, between about March or April 1997 and early 1999 the Victoria Police Major Fraud Group conducted an investigation into the Service. The investigation (Operation Caledon) was conducted by some four to five officers. The officers did not have any special coercive powers. They took statements from a number of persons, including the plaintiff. More than one person declined to be interviewed. Documents were seized from the plaintiff. Eventually the police recommended that charges be laid against a number of persons - but not the plaintiff (that was so although the final police report opined in strong terms that there had been non-compliance with government and departmental guidelines with respect to competitive tendering and contracting out, the plaintiff having contended, to the contrary, that compliance was unnecessary and that what had been done was appropriate [see Exhibit G]). The Director of Public Prosecutions, after conferring with at least one of the investigating officers, determined not to lay charges.

272. Fourth, all the material gathered by the police had been provided to the Commission.

275. Fifth, the Commander of the Major Fraud Group at the outset of its pertinent investigation, Mr Bowles, is the same gentleman who (having retired from the police force) is the Commission's director of investigations. His name was put forward by the Commissioner. His appointment was agreed upon by the Commissioner, available counsel assisting and the secretary of the Commission.

278. Sixth, Mr Bowles, called by the plaintiff, gave evidence before me. He was not examined to suggest that he had provided information to the effect described by Mr Forbes in the latter's evidence at the Commission; nor cross-examined in a way that gave him an opportunity to deny that he had provided any such information. I add, that in his evidence Mr Forbes had mentioned making contact with Mr Bowles for the purpose of providing him with information pertinent to the Commission's inquiry.

281. Seventh, the report of the police investigation was written by a solicitor member of Victoria Police, Mr Roger Jeans. This year, Mr Jeans was seconded from the force to the Department of Premier and Cabinet, and then attached to the Commission. His delayed letter of appointment described his role as "Solicitor to the Investigations Team". His role, as he described it in evidence, was to ascertain witnesses who may have information; and to obtain statements.

284. Eighth, Detective Chief Inspector Kevin Sheridan was involved in the police investigation and in the recommendation that charges be laid. He conferred with the Director and other persons in the Office of Public Prosecutions concerning that recommendation. He accepted the correctness of the decision that was made not to prosecute. But he has never changed his view that charges should have been laid. He knows of no police officer involved in the investigation who did change that view. He acts as liaison officer to the Commission on behalf of the police force. He assisted the Commission early this year by supplying police files created by the Major Fraud Group in its investigation of the Service.

287. Ninth, the opening of senior counsel assisting on 15 March 2000 clearly enough opened up investigation of possible illegal or improper conduct in the period that the plaintiff was chief executive officer of the Service; and the plaintiff's possible involvement in such conduct: see RCTr 532-535, 539-541 and 542-543.

290. What might the hypothetical observer make of all this?

293. One position that might be urged is this: the Commissioner was placed in an extremely difficult position by the critical part of Mr Forbes' article. The Commissioner had rightly faced up to the allegation and said that there was no truth to it. What more could he do? What the Commissioner (and counsel assisting) said was enough to end the matter. The investigation in the course of which Mr Forbes was examined and Commission staff were interviewed was unnecessary. It was an indication of the Commissioner's good faith.

296. Then, as to the closed hearing at which Mr Forbes was examined, was it not understandable that the Commissioner would want to deny the press the chance of a media spectacle? And was it not understandable that an examination one of whose purposes was to ensure the integrity of the Commission's processes should be kept confidential?

299. Again, was not the course which the Commissioner adopted with respect to Mr Forbes' refusal to answer questions understandable as a method of defusing the incident and its possible impact upon the Commission's reputation?

302. Further, were not the reasons given for holding the information session cogent? And were not the conclusions expressed by counsel assisting quite sound?

305. Next, there was no reason to believe that Mr Bowles' investigation had not been thorough. Mr Bowles himself should be excluded as the "informant". True he had spoken with Mr Forbes in connection with the Commission's inquiry. But he had given evidence before me, and he had not been examined or cross-examined to suggest that he was the informant. Was not the fact that an internal investigation had been ordered itself a demonstration of the Commissioner's desire to get to the bottom of what Mr Forbes had written?

308. Further again, even if a member of the Commission staff had prejudged material adversely to the plaintiff, why was there reason to apprehend that such prejudgment might infect the work of the Commissioner (or of counsel assisting)? Could it not be fairly assumed that the Commissioner (and counsel assisting) would be vigilant in their work?

311. Finally, would it be anything more than speculation to conjecture that the informant (if not the Commissioner or counsel assisting) was simply repeating the expressed views of the Commissioner or counsel assisting; and would it be more than speculation to conjecture that the informant had the ability or opportunity to impose his views upon the Commissioner or counsel assisting?

314. Is it arguable, however, and if so with what strength, that the observer might legitimately adopt a different perspective, whose threads would be as follows:

317. A serious allegation of prejudgment was made. Denial by the Commissioner (and counsel assisting) was to be expected; but saying something did not mean it was the case.

320. Accepting, for argument's sake, the statements of the Commissioner and counsel assisting that there was no actual prejudgment, and accepting also the evidence of Mr Forbes which on the one hand exonerated each of them as his informant, and on the other hand reiterated that there was a Commission informant, who was the probable informant? Objectively, might not Mr Bowles be suspected? [In this connection there is the lawyer's point that Mr Bowles gave evidence and that counsel for the plaintiff did not examine him to suggest that he had been the informant. But, on the other hand, neither did counsel for the defendant cross-examine Mr Bowles to dispel the suspicion that might objectively attach. This would create problems for a lawyer, let alone a lay observer]. If it was not Mr Bowles, then having regard to Mr Forbes' position as a senior journalist with a long history of close involvement in the ambulance imbroglio (so, for example, he was one of the authors of the article of 9 December 1999 which is referred to elsewhere in these Reasons; and a request made by him under the Freedom of Information Act is the subject of inquiry under term of reference 7), and having regard to his role in providing information to the Commission, and further having regard to the seriousness of the allegation made in the article, was it not likely that the informant was a member of the Commission's investigation team rather than some junior clerk (or, for that matter, the Commissioner's then media director)?

323. Might it not, then, be sensibly apprehended that the informant was party to, and was repeating, the opinion of the Commissioner (or perhaps counsel assisting), or was in a position where he might influence the thinking of the Commissioner, or that the informant's perception of the situation was likely to affect the way in which investigations were pursued, and the way in which material was presented to counsel assisting and thereafter to the Commissioner - this producing, in substance, prejudgment by the Commissioner?

326. Next, might not the hypothetical observer reasonably be concerned about the way in which the Commission handled the matter? Might he not fairly think, for a number of reasons that I shall set out, that the Commission was ready to exculpate itself fairly readily from the import of what Mr Forbes had written?

329. So, first, might he not think that, even if an in camera hearing was necessary, there was good reason why counsel for represented parties should have been permitted to attend? Could not the Commission have inquired into the integrity of its own processes without excluding counsel for represented parties? Since senior counsel assisting knew, in advance, that Mr Forbes would not implicate the Commissioner or counsel assisting as "the source", was it not a matter of very considerable concern that a private hearing was conducted in which that was said and no one present had an interest to challenge it?

332. Second, might he not think that the Commission - by the statements of both senior counsel assisting and the Commissioner - was principally interested in maintaining the integrity of its processes, not in ascertaining whether it was infected by partiality? Could there be virtue in preserving the integrity of Commission processes if to do so was to conceal prejudgment?

335. Third, whilst he would rightly conclude that senior counsel assisting had comprehensively cross-examined Mr Forbes (as counsel for the plaintiff conceded before me), might he yet be concerned that the Commission had, by counsel assisting, in substance advised its likely course in connection with Mr Forbes even before it had commenced its own internal investigation; and that it had formally advised its intended course on the day after that investigation commenced?

338. Fourth, might not he be concerned about the course which the Commissioner decided to take with respect to Mr Forbes? It could be said to be a generous disposition. Note also that it was a disposition settled upon before the Commission began its own internal inquiry, and long before senior counsel assisting arrived at his conclusions. [I add this: the observer would not conclude that the Commissioner did not refer the matter to a law officer under s.20 of the Evidence Act because he was uncertain whether he had the power to question Mr Forbes about his article: cf Hecker v Beach (Dunn J, 7 May 1975, unreported). That is not the reason which the Commissioner gave for the course he took; and it is inconsistent with the attitude of senior counsel assisting in discussion with senior counsel for Mr Forbes on 16 March].

341. Fifth, might not the observer be concerned that the Commission used one of its own staff to conduct an investigation into the serious question raised by Mr Forbes' article? It might be said that propriety dictated that the investigation of that matter, allegedly involving a person within the Commission, be undertaken by someone external to the Commission.

344. Sixth, would not the observer have thought it likely that there was in fact material in the possession of the Commission implicating more than one person in conduct which justified criminal charges being laid (I put to one side for the moment the question whether the observer might have included the plaintiff among those persons)? After all, the material generated by Operation Caledon was in the possession of the Commission; and the observer might think that the 1999 decision not to prosecute was not the last word on the subject, particularly in light of the Commission's extended evidence-gathering abilities. Why should the observer be criticised if he reasoned that, despite the statements obtained by Mr Bowles, Mr Forbes' evidence could not easily be dismissed? Moreover, he might note that the statements were neither released to the parties in the Commission proceedings, nor were in evidence before me; so that the extent of the internal investigation remained to an extent opaque.

347. Seventh, would it not be open to the observer to regard the Commissioner's apparent change of heart in releasing material on 27 April as being inadequately explained in the several reasons given by senior counsel assisting; and in that context regard the conclusions and opinions then expressed by counsel (apparently accepted by the Commissioner) as revealing a too-willing readiness to exonerate the Commission in its entirety from any conduct justifying the pertinent portion of Forbes' article? So, a reader of those conclusions might think that counsel was quick to find fault with the detail of Mr Forbes' evidence; and that there was a readiness to prefer the out of court statements (so far as is known, unsworn) of Commission staff to the testimony of Mr Forbes. The observer would not, I think, conclude that counsel's conclusions were affected by the advantage that he (and the Commissioner) had in seeing and hearing Mr Forbes give his evidence. Although it is not decisive, neither counsel assisting nor the Commissioner asserted any such thing.

350. Next, might not the hypothetical observer think that the serious allegation made by Mr Forbes' article referred, whether solely or otherwise, to the plaintiff? True it was that neither the Auditor General's report nor the Operation Caledon report alleged illegal conduct on the plaintiff's part. But on the other hand, the inquiries which led to those reports were inhibited by lack of coercive powers and absence of documents. The plaintiff was surely one of the "senior management" to whom the Auditor General's attribution of "at worst corrupt activity" related. At one stage the plaintiff had been a "main suspect" in Operation Caledon (Exhibit K, memorandum 2 May 1997), and at a later stage it was only said that there was "insufficient incriminating material to warrant a criminal interview" (Exhibit K, memorandum 26 February 1998). The terms of reference inevitably submitted the plaintiff's conduct to examination, a matter made the more obvious by the opening statement of senior counsel assisting (made on 15 March, but nonetheless part of the material in the context of which the article of 14 March should be considered). Further, the plaintiff's name has been repeatedly mentioned in the daily press for a number of years in connection with the Ambulance affair - an affair popularised as involving corruption and concealment. Could not the situation be summarised this way: that if the observer concluded that the plaintiff was a person to whom the critical portion of Mr Forbes' article related, that conclusion could not be said to be unreasonable?

353. All in all, might not the observer conclude that the course which the Commissioner and counsel assisting took with respect to the Forbes matter - whether or not that course was necessary - tended to reinforce rather than dispel an appearance of prejudgment adverse to the plaintiff conveyed by the critical portion of the article?

356. Having set out the competing analyses in some detail, I come to the critical point. The law requires, as I have said, that apprehension of bias be firmly established. It is one thing to say that there is a chain of reasoning, whose links are of variable strength, from which an appearance of prejudgment on the part of the Commission against the plaintiff may be discerned. But to say that does not of itself answer the question whether apprehension of bias by the Commissioner against the plaintiff has been firmly established.

359. In my opinion, a number of the matters which tend in the direction of apprehension of bias, and to which I have adverted, are matters of substance; not mere shadows. But I am not satisfied that apprehension of prejudgment has been firmly established. I have been influenced to that conclusion by three matters.

362. First, in the unusual situation created by the Forbes' article, there was not a lot of time given to the Commissioner to select an appropriately swift response. The response that was in fact made, once it was set in train, and whether or not it was necessary, led from one step to the next almost inexorably. With benefit of hindsight, one can stand back and argue that some, perhaps many, of the steps taken were not necessary; and one can now see that there were points where different action could have been taken. But the situation was an evolving one, against the backdrop that the Commission was under a time constraint and that substantive hearings were ongoing.

365. Second, there is, as I have noted, a way in which the hypothetical observer might view the facts and conclude that no apprehension of bias adverse to the plaintiff was disclosed. That approach could not by any means be said to be far-fetched.

368. Third, it is apprehension of bias on the part of the Commissioner that must be of the greatest (if not decisive) significance. Indeed, whilst the originating motion refers to "a reasonable apprehension of bias by the Commission", the Particulars commence by reference to "the existence of a reasonable apprehension of bias by the Commissioner." The observer would fairly draw a distinction between the Commissioner on the one hand and all other segments of the Commission (I include counsel assisting in this description) on the other hand. It might be apprehended that some segment of the Commission was affected by prejudgment and yet the observer might fairly conclude that the Commissioner was not to be saddled with that stigma.

371. Complaint may be made, as I have observed, about the circumstances in which Mr Forbes was examined. But he did say on his oath both that there was an informant within the Commission and that it was not the Commissioner or counsel assisting. I consider that it would be too much picking and choosing to accept the former and reject the latter. All things considered, putting myself in the shoes of the observer, I see no reason not to accept both.

374. That said, I think that it would fairly be regarded as no more than speculation that Mr Forbes' informant was either repeating the views of the Commissioner or was in a position to influence the Commissioner in a way adverse to the plaintiff. Further, I do not think it could be apprehended with any degree of conviction, even if the informant did provide prejudiced material to counsel assisting, and even if such material was adduced in evidence before the Commissioner, that the Commissioner, by want of vigilance, might himself become infected by that material to the plaintiff's detriment.

377. Before leaving this topic I should briefly mention an additional matter. In one of the documents which plaintiff's counsel handed up to me it was asserted in effect, that the reasonable observer would see in Mr Forbes' evidence which exonerated the Commission and counsel assisting as his informant, and in the way that the Commissioner dealt with Mr Forbes, the working out of an arrangement or understanding that Mr Forbes would exonerate the Commissioner and counsel assisting in return for a "good behaviour bond".

380. There was a deal of argument before me concerning the true nature of the assertion, whether or not it had been echoed in another of the plaintiff's documents, whether it had ever been formally abandoned; and so on. Much of this, I consider, was a sideshow. Insofar as the matter deserves attention it does so because, whether once or more than once, an assertion was made that out of certain events the hypothetical observer would or might conclude that the Commissioner, counsel assisting and counsel for Mr Forbes had concluded a corrupt arrangement which involved (or at least may have involved) Mr Forbes in giving perjured evidence. That was not "the obvious conclusion" to draw from the revealed circumstances. It was very far indeed from being "the obvious conclusion". Despite the fact that it should be taken to have been advanced as the perception of the hypothetical observer, I consider that it was an assertion that should not have been made.

385. The Particulars allege that the existence of a reasonable apprehension of bias by the Commissioner adverse to the plaintiff is to be discerned from the matters alleged by paragraphs 1.1(b), (c), (d), (e), (m), 1.2(f) and (i); and that the matters raised by paragraph 1.2(f) and (i) otherwise constitute a denial of procedural fairness. The paragraphs are as follows:

"(b) the total failure of the counsel assisting or the Commissioner to cross-examine Mr Morris, Mr Fodero and Mr Langridge as to their motives and conduct in respect of removing MAS documents and opposing outsourcing reforms; (c) permitting counsel assisting to lead evidence with a one sided political flavour and without any probing or testing of that evidence; (d) the involvement of counsel assisting in the drafting of Mr Morris' statement; (e) the favourable treatment by the Commission of the union witness, Mr Morris, and unfair treatment of Dr Paterson (known to be strongly disliked by the unions); (m) the Commission's abandonment of specified procedures for dealing with witnesses in relation to its dealings with Dr Paterson (who was only the third witness to be called for examination); 1.2 (f) denying (the plaintiff) access to the drafts of Mr Morris'

statement; (g) the leading of, and acceptance by the Commission of prejudicial

and not probative 'evidence' irrelevant to the scope of the inquiry."

389. Those Particulars grounded a major plank in the plaintiff's case: that the Commissioner has both acquiesced in and supported a thoroughly one-sided preparation and presentation of material by counsel assisting in which a political barrow has been firmly pushed, in which witnesses who have assisted in the pushing have been treated solicitously by counsel assisting, and in which a witness who stood in the way of the barrow was treated very harshly and unfairly by counsel assisting.

392. In building the plaintiff's case in this connection counsel for the plaintiff submitted that the hearings of the Commission clearly revealed a number of themes which have been advanced by counsel assisting in a one-sided way. Counsel produced a document in which 34 themes were identified. Leaving aside transcript references and headings the themes were these:

"1. MAS underfunded. 2. Liberal government cost cutting, even in the face of the coroner's finding of deaths due to inadequate funding and staffing of the ambulance service was the/a major cause of any problems with MAS. 3. On Minister Tehan's expressed view that 'lives were not at risk' therefore, there was no urgency to introduce CAD/AVL. Nor was there any urgency in other outsourcings such as financial management and non-emergency transport, indeed no need to outsource anything. 4. There was nothing/little wrong with MAS that could not have been fixed with a little bit more money and time. 5. CAD/AVL needed 2 years to implement (not 6 months as occurred). 6. The real motive of Minister Tehan, Dr Paterson and Firman was to 'smash' the union by making its members redundant, even though this created a risk to public safety. 7. It was government policy to privatise MAS. 8. Minister Tehan and Dr Paterson's true intention was 'smashing' the union. 9. Firman was chosen as CEO because he was a person likely to 'smash' the union. He was an agent for change. 10. Firman adopted a 'crash through or crash' approach. 11. Firman acted as CEO for a time before he was officially appointed. 12. There was no good reason to sack the existing committee of management. Henderson's resignation was forced. 13. The union problems were exaggerated and either did not exist or the problem was relatively small and under control. 14. The advice of Morris and other union officials was wrongly ignored. 15. The first Henderson consultant's report was flawed. 16. Perrins was a 'puppet'. 17. Minister Tehan, Dr Paterson and Firman have acted deceptively and unfairly. 18. It was irregular for Firman to be employed through his company Pinelow Pty Ltd as it created a conflict of interest as between Firman's duties to Pinelow and to the Department. 19. Firman had a most unusual bonus clause in his contract. 20. Firman's bonus was a motivating factor in his conduct in relation to MAS. 21. Minister Tehan and Dr Paterson irresponsibly permitted or turned a blind eye to these most unusual and unsatisfactory commercial arrangements. 22. Firman pushed for Griffiths and, inter alia, ignored Perrin's information as to his association with the business failure. 23. Firman had a pre-existing relationship with Tyrell, Griffith and Terry Henderson. 24. Firman had Intergraph in mind at the commencement of his employment as CEO. It was a done deal. 25. Firman wrongly ignored government guidelines and procedures and acted outside them. 26. Firman's proposal that MAS have its own CAD system was contrary to government policy. 27. Firman left no proper paper trail. 28. Tenders were rigged or improperly conducted. 29. Tenders were not in accordance with government guidelines. 30. Firman was involved in removing or concealing key documents. 31. Firman's reforms did harm. 32. There were breaches of statutory obligations and other disregard for duty by Paterson/Tehan. 33. Dr Paterson and Mrs Tehan abrogated responsibilities by not properly supervising Firman. 34. Filschie and Coroner's recommendations ignored."

396. Counsel for the plaintiff did not deny that most of the themes were, actually or potentially, relevant to issues opened up by the terms of reference. He did not extend that concession, in substance, to the matters categorised as themes 1, 2, 6, 8, 9, 10, 12 and 13. His principal complaint was that counsel assisting, with the Commissioner's acquiescence and encouragement, had relentlessly pursued the themes in a one-sided manner; and that a number of important matters which might tend to impugn the evidence of proponents of the themes were not raised by counsel assisting. Thus:

* The conduct of Messrs Langridge, Morris and Fodero, or any of them, in providing Service documents to Mr Thwaites;

* Union policy, the campaign to oppose outsourcing, and generally the motives for "union" witnesses to give the evidence which they did;

* Inconsistency between the evidence of union officers at a Coroner's 1992 inquiry into ambulance-related deaths and the evidence of witnesses such as Mr Morris in the Commission hearing;

* Failure to probe the opinions of Messrs Allan Henderson, Morris, Langridge and (substantially) Fodero - by contrast with swift and vigorous cross-examination of opinions expressed by Dr Paterson;

* The contribution of persons such as Mr Morris to the investigations undertaken by and the conclusions of the Auditor General and Victoria Police (particularly when some of the Auditor General's conclusions were put to Dr Paterson in cross-examination by counsel assisting).

404. Counsel characterised each of those issues as a credit issue only; but he made the point that the credit of witnesses was important in that, for example, diametrically opposed accounts of pertinent conversations had been given.

407. I do not consider that the fourth matter raised by counsel did raise merely a credit issue. Some of the opinions expressed by Messrs Allan Henderson, Morris, Fodero and Langridge went to matters of substance. Further, the Commission not being bound by the rules of evidence, it may be that the evidence of Mr Morris and others given at the Coroner's hearing could be treated other than as merely going to the credit of those witnesses insofar as any of them have given or might give evidence before the Commissioner.

410. Counsel for the plaintiff conceded that counsel for the represented parties had taken up the identified issues with Messrs Allan Henderson, Morris, Fodero and Langridge - but "partly", not "wholly". He submitted that attempts to fully cross-examine had, in some instances, been inhibited by the Commissioner and counsel assisting.

413. According to the submissions of counsel for the defendant the criticisms of the Commissioner and counsel assisting were in all respects without foundation. Each step taken by the Commissioner and counsel was individually explicable. Insofar as there had been a variant approach taken by different counsel assisting to the examination of different witnesses, that was no more than a forensic decision dictated by different circumstances. Insofar as there has been sharp exchanges between senior counsel assisting and Dr Paterson, they were a reasonable response to the way in which the witness went about answering questions; and in any event Dr Paterson was well able to look after himself. Insofar as Messrs Henderson and Morris had not been cross-examined by counsel assisting, well, counsel for represented parties were present and were able to conduct cross-examination. Further, the plaintiff's counsel in substance withdrew from the Commission hearings when only three witnesses had given their evidence (or part thereof). A witness later called who the plaintiff characterised as a "union witness" had been cross-examined by counsel assisting. This pointed up the fact that the plaintiff's application was premature.

416. The matters put into issue by the parties were numerous. In order to fully understand and deal with them, as well as for other purposes made necessary by the plaintiff's case, I read:

* Mr Morris' draft statements, signed statement, and the narrative of events which he prepared;

* The statements, so described by the Commission, of each of Messrs Allan Henderson, Perrins, Terry Henderson, Langridge, Collier, O'Connor, Caesar and Fodero; and of Dr Paterson (including his letter dated 27 February 2000);

* The transcript of evidence adduced by counsel assisting from each of the witnesses to whom I have just referred;

* The transcript of cross-examination of the witnesses to whom I have just referred, insofar as any counsel referred to it;

427. I also listened to some of the audio tapes of the Commission hearing, namely, random selections of the examination of Dr Paterson by counsel assisting in the period 22 to 24 March.

430. Having done so, I turn to the issues agitated for the plaintiff.

433. Senior counsel assisting told the Commissioner, in his opening, that counsel assisting would call all witnesses. At the end of examination of a witness by other parties, counsel for that party would examine. Then, if necessary, counsel assisting would examine again: RCTr 547-548. Statements, from different sources, were in the hands of the Commission: RCTr 510. It was proposed that statements be incorporated (that is, if and when they were adopted) into the transcript as though they had been read: RCTr 522.

436. A little later on 15 March counsel proposed, and the Commissioner accepted, that once a witness had sworn to his statement - that becoming, in effect, his evidence-in-chief - copies of the statement would be made available to members of the press: RCTr 582-583.

439. Later again the Commissioner referred to "adopting the process of treating the statement, at least for preliminary purposes, as the evidence-in-chief of the witness": RCTr 758. He rejected a submission that evidence be led from witnesses in the ordinary way: RCTr 760.

442. The procedures thus identified were followed in the case by the first witness, Mr Allan Henderson, from whom a statement had been obtained by Mr Jeans. Mr Henderson was chief executive officer of the Service between late 1990 and March 1993. He resigned, as he said, because he did "not believe the new Liberal government were meeting the needs of Ambulance for the Community", it having significantly reduced the budget allocation; and because "linked to that was the (union's) intransigent attitude to accept workplace reform ... "; although "at the time of (his) resignation their attitude towards workplace reform was changing ... ". Mr Henderson's written statement was considerably expanded upon in evidence adduced by senior counsel assisting. The witness was given good opportunity to develop the themes of his evidence.

445. The procedures to which I have referred were partly followed in the case of Mr Morris, the Secretary of the Union. A statement was obtained from him by the Commission. In breach of the procedures that had been adopted it was released to the press before Mr Morris went into evidence. An attempt was made by one of counsel assisting to remedy the situation by having Mr Morris go into the witness box at the end of a day's sitting just to adopt his statement. The effect of such a course would have been that the statement, which made a number of serious allegations, would have been available for use by the press before there had been any opportunity for cross-examination of the witness. In the end, fortunately, the proposed course was not taken.

448. Once in the witness box, Mr Morris adopted his statement (with a few amendments); and counsel assisting examined him in a way that facilitated the development of the themes of his evidence.

451. The next witness was Dr Paterson, formerly Secretary of the Department of Health and Community Services. He had assumed responsibility for ambulance matters in late 1992. He had made a statement to the police in the course of the Operation Caledon investigation. On 27 February 2000 he wrote a letter to senior counsel assisting. It was headed "MAS Royal Commission: Context of the Times". These documents essentially summarised events, and expressed certain opinions. Certainly they were not an exhaustive statement of the evidence that it might have been expected Dr Paterson could give.

454. Senior counsel assisting took the witness. The latter was not asked at the outset to identify and adopt the contents of his statement or letter. Within a short time of the examination commencing tensions between witness and counsel emerged. A dispassionate observer might think that there was some fault on both sides. It suffices for present purposes to say that the examination departed at the outset from the course adopted in the case of Messrs Alan Henderson and Morris. Within a matter of minutes the witness was asked whether in a broad sense he considered there were any deficiencies in the development or implementation of the systems the Commission was looking at; and when he attempted to answer what was evidently an extraordinarily wide question he was criticised, I think many would say unnecessarily, for the way he went about the matter. Certainly he was not given an opportunity to lay out his position as had occurred with the earlier witnesses. A moment or two later he was asked whether he had read the Auditor General's report, and whether there was anything in it which disturbed him. More than 50 pages of transcript passed before counsel assisting invited Dr Paterson to adopt the statement he had made almost two years earlier, and which the witness said he had not read recently; after which he was invited to adopt the contents of his letter of 27 February 2000. That is as far as I need go for present purposes.

457. Dr Paterson was the last person called before counsel for the plaintiff made the submissions on 27 March to which I refer elsewhere in these Reasons. That was the last day on which counsel for the plaintiff attended at the hearings of the Commission except for what may be called specific purpose appearances on a few later occasions.

460. Mr Perrins, the administrator of the Service between April 1993 and January 1997, was called on 29 March. He was immediately taken by senior counsel assisting to several documents which may loosely be described as statements, and which had different provenance - but which in no case was a document prepared with the assistance of Commission staff. He adopted the first of them, saying that it was obviously a bit cryptic. Counsel assisting assured him that he would have ample opportunity to expand on any particular aspects that he wished to do: RCTr 1710. In the case of his second statement he was invited to make corrections, which were identified for him, before he adopted it. In the examination which followed adoption of the statements the witness was not in fact given a direct opportunity of expanding upon their contents.

463. Mr Terry Henderson, who was at pertinent times a principal of Henderson Consultants, an entity which the Service used for consulting purposes after the plaintiff became its chief executive officer, was called on 5 April. He was immediately taken to a statement he had made in the course of the police investigation in March 1998. He adopted it. Then he was taken to a document apparently prepared by some member of the Auditor General's staff in 1997. It purported to be the minutes of a meeting held between audit staff and Mr Henderson. Mr Henderson was given ready opportunity of correcting what he said were remarks wrongly attributed to him. Then the minutes were put into evidence. After this, junior counsel assisting began to examine the witness about matters which - as occurred in the case of other witnesses nor infrequently - appear to be remote from the terms of reference. Be that as may, the examiner did not inhibit the witness's answers to the questions put to him.

466. Mr Peter Langridge was called on 7 April, the day on which the Commissioner ruled upon the "Represented Parties' Charter". He was first taken by counsel assisting to two statements which he had made, to notes of an interview held between he and a member of the Auditor General's staff, and to a transcription of the record of interview. One of the statements had been taken by the police, the other had its genesis in a conference held between he and one of counsel assisting.

469. Mr Langridge had commenced employment as an ambulance officer in 1986. In 1993 he had been appointed Projects Officer for Communications. By that time he had assisted in developing a communications information system. Mr Langridge was a subordinate of Mr Fodero. Each of them was critical of the outsourcing of despatch services, specifically to Intergraph. Each of them alleged, in substance, corrupt dealing by one or more persons in the senior management of the Service. Mr Langridge's statement dated 8 July 1997 contained a great deal of impression, opinion and hearsay. That did not stand in the way of its being received. A statement which he made to the Commission on 12 March 2000, also tendered into evidence, contained much opinion, hearsay and detective work.

472. A good deal of the opinion which Mr Langridge expressed in the two statements appears to have depended upon him having expertise in information technology. The statements suggested that he did not have sophisticated knowledge in that area. Whilst that did not inhibit their tender, it is to be noted that in the course of oral examination counsel assisting to some extent investigated the witness's expertise, probed some opinions expressed in the statements, and also took up some allegations of fact.

475. Mr Allan Collier was called on 10 April 2000. He was a director of Consultel between 1994 and 1996. That company had unfavourably reviewed - apparently for the Department of Finance, not the Service - a tender specification prepared by Henderson Consultants for the Service with respect to computer-aided despatch. The witness was immediately taken by counsel assisting to a statement which had been obtained from him by a Commission investigator. Then he was asked questions which arose out of parts of his statement. The effect of the questions was to permit him to expand upon criticisms of the specification prepared by Henderson Consultants. Thereafter certain opinions expressed by Dr Paterson were put to him for comment.

478. Mr Robert O'Connor was also called on 10 April. He had been employed by a company which had, he said, assisted one of the unsuccessful short-listed tenderers for the computer aided despatch system. His statement, apparently taken by a Commission investigator, was put to and adopted by him at the outset of his evidence. The statement went, mainly, to some circumstances which surrounded the tendering process. In oral evidence, counsel assisting took him to his statement, and asked questions about it. Then he was asked to consider, and was given full opportunity to criticise, the Henderson Consultants specification.

481. Mr Gary Caesar was called on 11 April 2000. His statement, taken by a Commission investigator, was put to and adopted by him as soon as he was sworn.

484. Mr Caesar was in 1993 Sales Manager for government business of one of the short-listed but unsuccessful tenderers. His personal involvement in the tender process had not been very great.

487. Mr Salvatore Fodero, employed at pertinent times by the Service as Manager of Information Systems, gave evidence at public hearings of the Commission commencing on 13 April 2000. Mr Fodero was, on any view, an outspoken critic of the computer-aided despatch tendering process. He had earlier given evidence at an in camera sitting of the Commission. It could not be said, so far as the transcript of that evidence is before me, that he had then been unkindly treated.

490. At the public hearing hearing Mr Fodero was immediately taken to a statement he had made to the police in July 1997. He was given the opportunity of correcting what he said were errors in the document; and of adding material to it. Thereafter senior counsel assisting took him to part of his statement and to in camera evidence in which he had asserted that he had been instructed by a superior to remove certain criteria from the evaluation process of the short-listed tenderers for the computer-aided despatch system, that he had done so, and that this had been to the advantage of the successful tenderer. Material was put to him which suggested that his evidence had been, to put it neutrally, erroneous. Some of the examination, in light of the witness's answers, was understandably direct.

493. That exhausts, with one exception, witnesses who have thus far given evidence in connection with terms of reference 1, 2 and 4. The exception is Dr John Goldrich, a consultant who assisted in the evaluation of the computer-aided despatch tenders. He gave evidence in camera. The transcript of the witness's confidential evidence (part of Exhibit F) shows that a statement which he made to the police in 1997 was adopted at the outset of his evidence, and that he was questioned so as to the expand upon matters there set out, and so as to raise additional matters.

496. I should pause for a moment. Without having regard to the detail of the examination of witnesses by counsel assisting, what would or might the hypothetical observer draw from the circumstances which I have so far described and from the pertinent transcript of the Commission hearings (in which I include the statements which were introduced into evidence)? The answer to that question, I consider, is that he would or at least might conclude that:

* Nine of the ten witnesses from whom evidence had been adduced at public hearings of the Commission in connection with terms of reference 1, 2 and 4 were treated in accordance with the procedures announced by senior counsel assisting and acceded to by the Commissioner: that is, each of them was taken to a statement or statements he had made and was given the opportunity of adopting such statement(s); after which matters addressed by the statement(s) were taken up with him. The exception, markedly so, was Dr Paterson.

* Two of the three witnesses (that is, out of the ten witnesses in all) from whom evidence was adduced before the plaintiff's counsel ceased to regularly attend Commission sittings were treated in accordance with the announced procedures. The exception was Dr Paterson.

* Of the ten witnesses, three who at pertinent times were employees of the Service were stridently critical of the tender process with respect to the computer-aided despatch system: Messrs Morris, Langridge and Fodero. Three other witnesses, from different perspectives, were to an extent critical of the process: Messrs Collier, Caesar and O'Connor. One other witness had direct involvement in the process: Mr Terry Henderson. His evidence supported the competence and integrity of part of that process. The other witnesses, Dr Paterson included, were at a remove from the process. In the case of Mr Allan Henderson, it occurred after he had resigned from his position as Chief Executive Officer of the Service.

* The statements derived from different sources. Some were not what would commonly be described as statements. A number of statements had been taken by Commission investigators. In two instances, those of Messrs Morris and Langridge, there had been involvement by one of counsel assisting. In the case of Mr Langridge counsel interviewed the witness, and then a Commission investigator prepared a statement for his signature: RCTr 2676. In the case of Mr Morris the circumstances were more complex. I will set them out a little later in these Reasons.

* There was no attempt by Commission investigators to obtain a full statement from Dr Paterson before he gave evidence.

* In one case only, that of Mr Morris, the Commission released a statement before it was adopted by the witness. I earlier referred to the incident. It requires a little more elaboration.

First, the release was said by counsel assisting to be "due to a confusion".

Second, the Commission made an order under the Evidence Act which precluded the document or its substance being published in the press until Mr Morris had adopted it.

Third, whilst counsel for the plaintiff conceded that he was unable to say that early release of the document was, or might be seen to be, deliberate conduct by the Commission directed against his client, he argued that the stamp of bias was to be seen as an attempt by counsel assisting to blame Mr Claney, then the Commission's media director, for what he, Mr Claney, understood to be compliance with the instructions of counsel assisting.

Fourth, the hypothetical observer might think that Mr Claney's assistant, who released the document, did believe that she was acting on authority. But the observer would not go on to draw the inference for which plaintiff's counsel contended.

* The Commissioner constantly adopted the course that, if a witness wished to say things in his statement then (save only if they were inevitably outside the terms of reference - as, for example, being outside the temporal confines of the terms) the witness should be permitted to say those things: see, for example, RCTr 760, 2677. That course was taken, over objection, particularly in the case of Mr Morris but also in the case of Mr Langridge.

* Concerning the last of these matters the observer might be led in different directions. On the one hand, he would recognise the fact that the Commission was conducting an inquiry. Its processes were not to be equated with those of a court. In the course of the inquiry, perhaps the observer would think, material might be received which in the end would prove to be irrelevant to the terms of reference, or to have made ill-founded allegations. Such material could in due course be put to one side. He might conjecture that the more extreme the allegations, the less secure their foundations, the more easily they could be put aside by the Commissioner at the end of the day.

He might think that the Commissioner gave an explanation on 12 April of what had hitherto been going on, and of what he intended to do thereafter. Thus:

"Mr Elliott was right. This was intended to be, in a sense, a form of discovery, an information gathering exercise, and we have gathered a large amount of information, not all of which is central to our terms of reference". (RCTr 3139) and " ... we intend to review the material with a view of identifying ... what we consider the issues really could be that affect the way in which I must report on my terms of reference ... It's an appropriate process for us ultimately to come to a view about what relevant issues the material has raised, as opposed to other issues, for example, the issue between [Dr Paterson] and the union ... which ultimately may not require resolution." (RCTr 3137-3138).

On the other hand, an observer might be concerned that the admission of a statement which expressed an implacable position concerning the asserted need for change and the manner of its implementation, and which made sensational allegations, some of which allegations could be seen on a simple reading of the statement to be based upon hearsay, hearsay on hearsay, gossip or the amateur detective work of the witness, and some of which raised matters which most generously could be described as being at the outer reaches of relevance, went beyond what was readily explicable.

He might think that what the Commissioner said on 12 April revealed what had gone wrong.

515. The (possible) conclusions which I have set out must later be investigated in a wider factual context so that it becomes possible to see where they may reasonably lead. But before going to that matter, I should address the circumstances in which Mr Morris' statement, in the form proffered by him to the Commission, was made.

518. I am satisfied that, early this year, Mr Morris was requested more than once by counsel assisting to make a statement. He was at the time the defendant in a proceeding brought by Intergraph for defamation. He took his answers to interrogatories in the defamation proceeding and cut and pasted them to provide a statement to the Commission. That document did not refer specifically to the plaintiff.

521. At the same time, he worked on producing a chronological narrative. It was based upon his recollection and upon a body of documents that he had accumulated over the years as a union official. This narrative, completed shortly after the cut and paste statement had been provided to the Commission, was compiled by very early March. It contained many references to the plaintiff. It contained much material extraneous to the Commission's inquiry. It may be said to have demonstrated a pretty clear attitude towards government in general, the Coalition government in particular, the plaintiff, changes to the Service implemented whilst the plaintiff was its Chief Executive Officer, and Intergraph (the last of which was said to have a "reputation of being right wing, anti-union"). A good deal of the information it set out was evidently outside Mr Morris' personal knowledge.

524. In early March Mr Morris met one of counsel assisting. The meeting lasted three to four hours. During the course of that meeting the cut and paste statement and the chronological narrative were melded. Counsel explained to the witness why parts of the statement or narrative ought be excluded. Mr Morris told counsel what he wanted included, and why. He impressed me in evidence as being a forceful man. It is certainly my impression that the melded statement reflected Mr Morris' view of what should be included.

527. After a melded statement was typed out by Commission staff, it was reviewed by Mr Morris and the union solicitor. Mr Morris gave the impression by paragraph 9 of his affidavit sworn 18 May 2000 and initially in oral evidence before me that he and his solicitor made significant changes to the document - thus downplaying the role of counsel assisting. But in the end I was left in no doubt that few if any changes of substance were made to the melded statement.

530. There is, in the end, no doubt in my mind that, working from the raw material provided by Mr Morris, counsel assisting had a pretty significant contribution in putting together with him the statement which he eventually proffered before the Commission. It was a statement which drew on disparate sources of information, addressed matters temporally outside the terms of reference, expressed as facts matters of expertise far outside the witness's qualifications, and expressed a clear opinion about possible impropriety in the outsourcing of the ambulance communications system.

533. I do accept, as I said a few moments ago, that Mr Morris was clear in what he wanted to be included in the statement; and that his views, at least very largely, prevailed.

536. The development of Mr Morris' statement into the form in which it was initially placed before the Commission led on to an unsatisfactory situation. When counsel for represented parties complained about the content of the document it was left up to counsel for the union to propose that certain parts of it should be omitted, and that other parts be limited in their temporal application; and in the event the statement which Mr Morris adopted was toned down. I note in passing the comment of counsel for the union, accurate on the face of things, that much of Mr Morris' information "was put forward as overview and background".

542. I do not accept the plaintiff's contention that for counsel assisting to have a role in the preparation of a witness's statement should be regarded as exceptional - specifically if the witness has, directly or otherwise, legal representation. I do not consider that Sir Edward Woodward's evidence at T623-624, upon which the plaintiff relied, went that far.

545. Next, I do not consider that it can be said that it was exceptional for counsel assisting to take part in the compilation of a witness statement which proffered a protagonist's view of things. As Sir Edward Woodward said, it is desirable to prevent purely inflammatory matters being put forward, but "one can't really censor the evidence in advance". (T623)

548. Further, the circumstance that one of counsel assisting had made a pretty significant contribution in putting together, from raw material, the statement of a witness whose views were known to be strong, and were known to be antagonistic to the plaintiff and others, combined with the fact that the particular counsel led the witness before the Commission, made it highly desirable that there be no room for any suggestion that counsel was protecting the witness when he was in evidence. In that connection a number of points arise. First, after it became evident that counsel had played a role in the preparation of Mr Morris' statement the plaintiff's counsel sought access to the earlier drafts. Counsel assisting resisted that application and the Commissioner endorsed that position.

551. It was, at least very largely, true to say, as counsel assisting said, that the earlier drafts were not inconsistent with the statement which Mr Morris adopted in evidence. On the other hand, particularly the chronological narrative could have been a fertile field for cross-examination as to the witness's credit.

554. Second, on a number of occasions counsel assisting objected to cross-examination. Those objections, some of which were upheld by the Commissioner, had the capacity to create the impression that a witness hostile to the plaintiff was being protected.

557. Third, counsel assisting addressed in re-examination a topic which might be said to reflect badly on the plaintiff (whether it had anything to do with any term of reference in another matter). She did so knowing what the witness would say about it - because it was referred to in the documents out of which the melded statement had been compiled. Plaintiff's counsel, not having seen those documents, had not understood (it is fair to assume) an oblique reference to the topic in an answer given by Mr Morris in cross-examination; and so had been put at a disadvantage.

560. Fourth, when the conduct of counsel assisting who had taken Mr Morris was the subject of complaint, she was forthrightly defended by the Commissioner: RCTr 1502.

563. Bearing in mind the fact that the present enquiry is concerned with appearance, not actuality, I think that the circumstances which I have described might give the observer some room to think that counsel assisting, and the Commissioner, treated Mr Morris, a man implacably opposed to the plaintiff, at least benevolently.

566. I return to the (possible) conclusions of a hypothetical observer which I earlier set out. I do so in order to see where they may reasonably lead in a wider factual context. That context must be defined.

569. The witnesses thus far called with respect to terms of reference 1, 2 and 4 whose statements made sensational allegations, or set out positions implacably opposed to that of the plaintiff concerning the need for change in the Service and the manner of implementation of any change, were Messrs Morris, Fodero and Langridge. The witness whose statement in substance supported the plaintiff's position upon those questions, and did so boldly, was Dr Paterson. Other witnesses had their own perspectives about the need for change, or the manner of its implementation; but their statements and evidence were either non-confrontational, or less so.

572. The observer would not conclude, I think, that Messrs Morris, Fodero and Langridge had identical reasons for being in the one camp; or, insofar as Mr Allan Henderson could be said to be an inhabitant of that camp, that he had the same reasons for being in it as did the others. But the observer would probably think that the members of that camp made common cause in being opposed to the philosophy of the then State Government insofar as it concerned the operations of a body such as the Service; and made common cause (I exclude Mr Allan Henderson from this) in condemning the conduct of the plaintiff and his hand-picked staff in the way that they went about effecting change. The observer would draw out of the statements of Messrs Morris, Fodero and Langridge, in particular, the individual expressions of those common themes.

575. Then, as to Dr Paterson, the observer would no doubt think that he was a strong and articulate advocate of the need for change; and a supporter of the change which was effected in the Service in the period that the plaintiff was its Chief Executive Officer - though not of the plaintiff's attention to detail where paperwork was concerned.

578. Set in that context, how might the hypothetical observer perceive the content and manner of examination of witnesses by counsel assisting?

581. First, the observer would no doubt realise that not all witnesses were examined by the same counsel assisting; and that techniques of counsel in taking a witness may differ.

584. Second, the observer would also bear in mind the circumstances that, at the time when the plaintiff's counsel ceased to regularly attend sittings of the Commission, only three witnesses had given evidence at public hearings of the Commission; and that, whilst two of the three witnesses fell, more or less strongly into one camp, and the third witness into the other camp, two important members of the first camp - Messrs Fodero and Langridge - had yet to be publicly called. So he might think that it was really too early to see whether the conduct of counsel assisting, actively or tacitly supported by the Commissioner, revealed disparity of treatment of witnesses drawn from opposing camps - this leading on to reasonable apprehension of prejudgment by the Commissioner against the plaintiff.

587. Third, the observer would probably consider it wise to look at the way in which counsel assisting examined Messrs Fodero and Langridge when they came to be called; though he would perhaps keep in his mind the possibility that any change in examination technique reflected a reaction to the commencement of this proceeding.

590. Fourth, the observer would keep in mind the fact that, when this proceeding was commenced, the evidence of one of the three witnesses who had been publicly examined - Dr Paterson - was definitely not complete; whilst it was at least possible that the other two witnesses would be recalled. Those circumstances could be expected to reinforce a perception that it was really too early to see whether a pattern of prejudgment adverse to the plaintiff had been disclosed.

593. Fifth, the observer would realise that, whilst an investigative body such as the Commission might sensibly set up procedures of general application, there might be reason in an individual case why those procedures should not be followed.

596. Sixth, the observer would not see in the fact that a witness was represented an explanation why procedures should be abandoned; a fortiori where those procedures were followed in the case of another witness who was in substance represented.

599. Seventh, the observer would surely think that, whatever be the explanation, Dr Paterson was in fact treated differently by counsel assisting to the way in which Mr Allan Henderson and Mr Morris were treated. He would, I think, note that Mr Henderson and Dr Paterson were taken by senior counsel assisting, but that Mr Morris was taken by one of junior counsel assisting.

602. It is unnecessary to resort to line by line analysis of the Commission transcript to explain why I have concluded that different treatment was accorded the three witnesses. For the most part general observations will suffice.

605. Messrs Allan Henderson and Morris were given full opportunity by counsel assisting to expand upon their statements. In the case of Mr Henderson that meant that evidence was adduced which was critical of both the union and the new broom constituted by the incoming government and Dr Paterson (concerning Dr Paterson, see in particular RCTr 592, 593, 609, 610). In the case of Mr Morris, the thrust of the evidence was all one way. The witnesses were taken beyond their statements - to, for example, matters set out in Dr Paterson's statement. Mr Morris was thus given opportunity to meet those matters; and was not pressed in any way upon the answers that he gave. Generally, counsel assisting did not cross-examine the two witnesses. At the least any cross-examination was very muted (see, eg, RCTr 817-821). Re-examination of Mr Morris took the form - in some measure - of grossly leading questions that did not make the witness's task of putting his views any more difficult that it had to be.

608. Any motive that the witnesses might respectively have had for giving evidence adverse to the incoming government, Dr Paterson and the plaintiff was not explored; though in the case of each witness possible motive was clear enough.

611. Apart from objection taken to the content of Mr Morris' statement, not much objection was taken to the evidence adduced by counsel assisting from the two witnesses. The very likely explanation lies in the approach which counsel for represented parties then understood the Commission to be taking - that is, of receiving the entirety of what any witness wished to say, subject only to exclusion of material which was unarguably irrelevant.

614. Dr Paterson was examined by senior counsel assisting for four days. As I noted earlier, he was not taken to his statement and letter at the outset. It was about 50 pages into the transcript before he was taken to his 1998 police statement. In that period the examination had at times already taken the form of cross-examination.

617. It is, I think, most pertinent to consider the period of examination by counsel assisting up to and including Friday 24 March. The examination had by then continued for two and a half days. Further, it was on Monday 27 March that counsel for the plaintiff submitted that there had been want of procedural fairness (I refer to that submission elsewhere in these Reasons) and thereafter ceased to attend Commission hearings regularly. It is also noteworthy, in this connection, that in submissions dated 5 April, made in connection with the Represented Parties' Charter, counsel for Dr Paterson contended that "on no view could it be said that" his client had to that point had a reasonable opportunity to present his case; and at the same time observed that after submissions had been made by plaintiff's counsel on 27 March "the manner in which counsel assisting has behaved towards Dr Paterson ... has altered markedly".

620. Looking, then, principally (but not exclusively) to Dr Paterson's examination by counsel assisting up to and including 24 March, the informed observer might well think that it demonstrated these things:

623. First, that the witness was intelligent, articulate and better equipped than many would be to withstand cross-examination techniques.

626. Second, that the witness was taken, though belatedly, to his police statement and letter; but that he was not given an opportunity to expand upon what he there said in the way that Mr Allan Henderson and Mr Morris were given that opportunity.

629. Third, that the witness was at times permitted to give expansive answers to questions, but that his answers were sometimes chopped off. Compare the treatment accorded to Messrs Henderson and Morris.

632. Fourth, that the witness was at times accused of not answering questions when a fair reading of the transcript shows the contrary.

635. Fifth, that counsel, rather than the Commissioner - but without any adverse comment by the Commissioner - on a number of occasions rebuked the witness for allegedly not answering the question; and on one occasion delivered, in effect, a lecture to the witness about what he, counsel, would and would not permit.

638. Sixth, that a good deal of the examination took the form of cross-examination founded on selected parts of a diary kept by the witness; a cross-examination which raised difficulties for both the witness and the cross-examiner because the diary entries were often abbreviated, and required reconstruction long after the event; and which on occasion raised the problem of an entry which had been mistranslated into typed form.

641. Seventh, that counsel assisting at times appeared to get into some personal conflict with the witness. In this connection see, for example, RCTr 1241, 1264, 1278 and 1372-1374. In no instance that I have seen did the Commissioner advise restraint when that type of thing occurred.

644. Eighth, that the examination focussed to an extent upon the political will for change.

647. Ninth, that portion of the witness's diary notes were dismissed by counsel as "tittle tattle" - an observation which may well have been accurate, but which sat somewhat oddly with the apparent willingness of counsel assisting to elicit a miscellany of material from, for example, Messrs Morris and Langridge.

650. Tenth, that the audio tapes of the examination up to and including 24 March 2000 do not in substance add to the picture which emerges from the transcript.

653. Eleventh, that whilst the examination of Dr Paterson was markedly different to the examination of Messrs Allan Henderson and Morris, and whilst it contained features to which the witness's counsel understandably took objection, it was not by any means extreme when judged by the standards of cross-examination seen in the courts; and the same can be said with respect to the relatively short re-examination, where once again the witness and counsel assisting locked horns.

656. I noted earlier that Messrs Langridge and Fodero were called at public sittings of the Commission after the plaintiff's counsel withdrew from daily attendance. I need not repeat the detail of what I have already said about the examination of those two witnesses. It suffices to note that counsel assisting challenged Mr Fodero at some length about the accuracy of his recollection; and that Mr Langridge was to an extent challenged concerning matters of expertise, opinion and fact. Certainly their examination was closer to the examination of Dr Paterson than it was to the examination of Messrs Allan Henderson and Morris.

659. Counsel for the defendant submitted that it was necessary to also refer to the examination of the other witnesses - for example, Mr Perrins and Mr Collier - to properly assess the complaint of unequal treatment. I have already referred to aspects of their examination. Neither in the procedures adopted nor in the form or content of examination was either witness treated in the way in which Dr Paterson was treated; although it is the case that Mr Perrins, the former administrator of the Service, was subjected to a certain amount of close questioning.

662. Having described the differences that the observer would perceive in the form and content of examination of the various witnesses by counsel assisting, I should refer to the way in which the Commissioner dealt with objections. The plaintiff contended, in effect, that the informed observer would perceive a pattern in which the Commissioner sustained objections where that assisted "union" witnesses, and disallowed objections where that facilitated an attack on "anti-union" witnesses. It was, I add, conceded that the Commissioner's resolution of many objections should not be perceived to be exceptional.

665. I do not consider that the plaintiff's argument on this point was made out. A few rulings might excite surprise. But that may be said in the case of nearly every witness action; and it could be expected to apply a fortiori in the context of a Royal Commission, where investigation is the focus. It may also be said that for the most part the effect of the Commissioner's rulings was to permit evidence to be led, rather than to exclude it. This was consistent with his approach to reception of evidence generally, an approach which I have earlier described.

668. There is another matter to which I must refer in the context of alleged unequal treatment. Counsel for the defendant produced at trial analyses of the evidence of a number of witnesses given at the Commission. It transpired that counsel assisting, as well as other unspecified Commission staff, had prepared the analyses. It also emerged that several affidavits relied upon by the defendant had been prepared by the solicitors to the Commission. Counsel for the plaintiff submitted that the analyses were a fine example of special pleading. What they showed was the Commission's true involvement in this proceeding. Their origin and content reinforced the appearance of prejudgment adverse to the plaintiff.

671. I see no reason why counsel assisting and other Commission staff, if requested by the solicitor for the second defendant, should not have supplied analyses of evidence of relevant witnesses. As a simple matter of fact, at least counsel assisting could be expected to be more readily familiar with a large body of transcript than counsel and the solicitor for the second defendant.

674. On the other hand, I do consider that the analyses contained a deal of special pleading adverse to the plaintiff's case. This was an unfortunate and unnecessary distraction. It is true to say that the Commissioner and counsel assisting are not one and the same. But that rings a little hollow when the plaintiff seeks to halt much of the Commission's work by reference to the apprehended bias of the Commissioner, and when in response to that proceeding counsel assisting produce documents having the characteristic just described.

677. I can now deal finally with the issue of unequal treatment. The informed observer would see in the evidence adduced material touching most if not all of the themes identified by the plaintiff's counsel. He would think that at least most of those themes were opened up by the terms of reference; and that where this was not clearly so the explanation for receipt of material probably lay in the expansive approach taken by the Commissioner in the early stage of his inquiry. He would recognise that, at least very largely, four of the five topics identified by the plaintiff's counsel as appropriate for examination by counsel assisting of Messrs Morris, Fodero and Langridge (or one or more of them) had not been addressed in such examination. As to the fifth topic - that is, expressions of opinion by Messrs Morris, Fodero and Langridge - he would think that Mr Morris had been treated benevolently, not so Mr Fodero nor (to a lesser extent) Mr Langridge. He would think that the procedures outlined by senior counsel assisting at the outset of public hearings were followed - either exactly or in the main - in the case of all witnesses other than Dr Paterson; but he would appreciate that examination techniques may vary from counsel to counsel, and that procedures may need to be varied in a given case. On the other hand, he would not accept the proposition that a variation in procedures was explicable by a witness being represented - at least where the procedures were followed in the case of another represented witness. He would think that the Commissioner adopted a very expansive approach with respect to receipt of material, and this approach contributed to evidence being adduced from witnesses which was at times sensational, and which could readily be seen, in the case of some allegations, to be founded upon hearsay, hearsay on hearsay, gossip and amateur detective work; and which further was, viewed generously, at the outer reaches of relevance. He would think that such evidence was adduced from witnesses whose positions were adverse to that of the plaintiff. For reasons earlier described he would have some room to think that counsel assisting, and the Commissioner, had treated Mr Morris, a man implacably opposed to the plaintiff, at least benevolently. He would think that Dr Paterson's examination by counsel assisting was in form and content markedly different to the examination of Mr Morris; but that Messrs Fodero and Langridge had been to greater or lesser extent also closely questioned by counsel assisting. He would have regard to all the features of Dr Paterson's examination that I earlier identified. He would bear in mind the fact that all relevant witnesses, in particular the plaintiff, have not yet been examined and that at least some of the witnesses who have given evidence are likely to be recalled. He would see nothing untoward in the Commissioner's disposition of objections. For reasons that I have described he would view the analyses of evidence relied upon by the defendant with some concern.

680. The critical question is whether, having regard to all the circumstances, to the matters which tend in opposite directions, an appearance of prejudgment on the part of the Commissioner adverse to the plaintiff has been firmly established. It cannot be said that the plaintiff has not raised matters of concern; but in my opinion he has clearly not discharged the onus which he carried. That is so whether the unequal treatment complaint is (in all its elements) considered apart, or whether it is considered in conjunction with, particularly, the Forbes matter - about which I have also considered that there is some cause for concern.

Circumstances standing outside public hearings of the Commission

685. According to the originating motion in its amended form apprehension of bias is to be discerned from a number of circumstances which stand apart from the public hearings of the Commission. Set out chronologically, and in the language in which they appear in the document as amended, they are as follows:

"1.1(g) the public campaign by Mr Thwaites, through FOI applications, questions in parliament, and media statements; 1.1(f) the fact that MAS documents were illegally given to and received by the then opposition health shadow minister, Mr Thwaites who was a member of the cabinet who established the Commission; 1.1(q) the first defendant's presently known association with the Australian Labor Party (ALP) as follows: - Past membership (1972 - 1981); - Subscriber in 1974 to the public ALP advertising campaign "Lawyers for Whitlam". 1.1(r) the first defendant's failure to make that disclosure to represented parties before the Commission in a timely way; 1.1(s) the first defendant's refusal, despite a written request made on behalf of the plaintiff, to make full disclosure about his association with the ALP; 1.1(u) refusing to answer letters from the plaintiff's solicitors dated 1 and 4 May 2000; 1.1(j) the fact that the Commission was set up by the Premier's Department and not the Justice Department; 1.1(h) the involvement of members or former members of the police in the Commission who conducted or were associated with Operation Caledon; 1.1(i) the fact that the secretariat to the Commission are members of the Premier's Department rather than from the Justice Department."

689. In addition to or expansion of those circumstances other documents (the affidavits and written submissions) raise the following allegations:

(1) The Commission was established as part of a political deal between the Australian Labor Party and three independent members of parliament, that deal permitting the Labor Party to form government. The deal was made in circumstances where the Labor Party, before the 1999 General Election, had promised a judicial inquiry into the Service if it was elected, where the Coalition parties had then maintained that there had already been a full and proper investigation, and where after the election the independent members had released a charter which required as part of the price for their support that an inquiry be conducted into the "ambulance contracts/Intergraph issue", to which requirement both the Labor Party and the Coalition had agreed.

(2) Several weeks before the Governor in Council issued the Commission, the Premier told journalists (as reported in "The Age" on 9 December 1999 by the journalists Forbes & McKay) that Mr Lasry had been or was to be appointed, that the government was finalising the terms of reference with "the Royal Commission", and that their broad thrust would be that which in fact eventuated. Premature announcement of the identity of a Royal Commissioner was unprecedented. It was "highly unusual" that a Commissioner be involved in finalising the terms of reference.

(3) Amendment of the terms on 30 May was highly political in its effect. It should be thought likely that the Commissioner had a role in the amendment. This was relevant to consideration whether there was reasonable apprehension of bias on his part against the plaintiff.

(4) It is unusual for a government to establish a Royal Commission into illegality. Investigation of illegality is normally a police function. In this case the Major Fraud Squad of Victoria Police had already conducted an investigation into matters raised by the terms of reference, and the Director of Public Prosecutions had decided that no prosecutions would be commenced. The Royal Commission was particularly party-political in its inception and terms of reference, consistent with the long involvement of the Deputy Leader of the State parliamentary Labor Party in attacks upon outsourcing arrangements entered into by the Service.

(5) The Commission was largely set up by people within the Department of Premier and Cabinet (DPC), not by Department of Justice (DOJ) personnel. This was unusual.

(6) The Secretary of the Commission is a staff member of DPC. Historically, the Secretary to a Royal Commission has been provided by DOJ.

(7) The circumstances of the appointment of the solicitors to the Commission were "highly unusual". Decisions were made within DPC and not DOJ. Appointment of the particular solicitors was a deception - being designed to distance the Commission from the Labor Party.

(8) Each of the circumstances set out in paragraphs (4), (5) (6) and (7) should lead to an apprehension of political interference in the work of the Commission - and thus to a reasonable apprehension of bias on the part of the Commissioner. In this context the hand of Mr Thwaites should be seen to be at work - the hand of a man with an axe to grind.

(9) Messrs Alan Bowles and Roger Jeans are involved in investigatory work being conducted by the Commission; and Detective Chief Inspector Kevin Sheridan has a liaison role between the police force and the Commission. Mr Bowles was the head of the Major Fraud Group during part of the time when its officers were conducting Operation Caledon. Mr Jeans wrote the Operation Caledon report. Mr Sheridan had a long-term role in the Operation Caledon investigation. It should reasonably be apprehended that particularly Messrs Bowles and Jeans will not approach their enquiries objectively, but will rather seek to "make out a case" that was not made out - to the point of successful prosecution - by the police investigation.

(9) The Royal Commissioner has an association with the ALP. He is a past member of that party, and in 1974 subscribed to an advertisement entitled "Lawyers for Whitlam" (or, perhaps, "Lawyers for Labor"). He was consulted by officers of DPC about the terms of reference prior to the Letters Patent issuing. In context the hypothetical observer would reasonably apprehend that the Commissioner approached his Commission from the outset, in respect of issues involving the plaintiff, having prejudged those issues adversely to the plaintiff; or at least would reasonably apprehend that the Commissioner might not consider those issues impartially. That apprehension would or might be heightened by the Commissioner's assumed role in the 30 May amendment of the terms of reference.

702. Not all of the matters raised by the originating motion, affidavits or written submissions were pursued. Others were pursued, but not in the way in which they were initially framed.

705. Counsel for the plaintiff conceded that his client could derive nothing from the circumstances of the engagement of the solicitors to the Commission, nor from the involvement of DPC in setting up the Commission, nor from the fact that the Secretary to the Commission is a person seconded from DPC. I should say something about the matters thus raised and abandoned.

708. The contentions that bias was to be apprehended because the Commission was set up through DPC, because its secretariat are members of DPC, and because a so-called "conservative" firm of solicitors was appointed - for purposes of a deception - to be the solicitors to the Commission, were shown to be unfounded when the involvement of DPC and the circumstances of the solicitors' appointment were explained by the affidavits of Stephanie Cleary sworn 16 May 2000 and James Ruddle sworn 15 May 2000. Those contentions were then abandoned. Notwithstanding their abandonment, counsel for the defendant argued that they had been made without cause. In the case of the appointment of the solicitors it was contended that the plaintiff's case revealed paranoid thinking. The episode was said to be part of a general overstatement of the plaintiff's position.

711. The particular contentions seem to me to have rested on very weak material. The allegation concerning the appointment of the solicitors, and in particular the likely reason for appointment of the particular solicitors, was, I think, far-fetched. There seems to have been a pretty willing acceptance of any possible scenario that could link those in high political office with the contention that this was a politically orchestrated Royal Commission from whose genesis an apprehension of prejudgment by the Commissioner against the plaintiff might reasonably be drawn. Beyond those observations I do not go. In particular, I do not think that it would be right to consider each allegation which was pursued by the plaintiff other than by reference to its discrete merits.

714. Turning, then, to the complaints which the plaintiff did pursue in the present context, in summary form my conclusion is that none of them establishes his case. That is so whether they are considered singly or in combination.

717. There is no doubt that between 1994 - 1999 the now Deputy Leader of the State parliamentary Labor Party conducted an intensive campaign with respect to contractual and outsourcing arrangements entered into by the Service, for release of documents pertaining to such matters, and in connection with the non-production of certain documents. Some of his requests for documents were initially, and continue to be, embodied in matters for inquiry by the Commission: see term 7 in its original form, and terms 7 and 7A as amended on 30 May.

720. It is, I think, clear that the campaign had a strong political flavour, whether or not improprieties or illegality were in fact involved in the matters which Mr Thwaites agitated. In significant respects the position which he advanced reiterated criticisms of outsourcing and other arrangements made - often and publicly - by the relevant union, the Ambulance Employees Association. Philosophically, the government of the day had a very different view of the desirability of outsourcing by a body such as the Service than did the Labor Party or the union. It was very much in favour of that course being followed.

723. It is next clear that part of the price that any incoming government had to pay in late 1999 for the support of the members of parliament elected as independents was a commitment to institute a "judicial inquiry into the ambulance contracts/Intergraph issue". That adds nothing to the background. The Labor Party was already committed to holding such an inquiry; whilst the Coalition agreed to institute such an inquiry if it obtained the support of the independent members of parliament.

726. It should be accepted, then, that the Commission had its genesis in a long-standing controversy which had a political flavour, and that the independent members of parliament had a role in ensuring that a Commission was in fact set up. But what of it? Many Commissions and inquiries of similar kind are highly political in their genesis. One need look no further than the Royal Commission into the Communist Party conducted by Sir Charles Lowe, the Petrov Royal Commission, and in more recent times, Carter the Royal Commission, the Easton Royal Commission and the Inquiry into the Queensland Criminal Justice Commission. The most that can be said, I think, is that in the case of a Commission which is highly politically charged the observation of Thomas J in Carruthers, and the evidence of Sir Edward Woodward, to each of which I earlier referred, are an important guide to the selection and conduct of a Royal Commissioner.

729. Is the situation any different because, let it be assumed, "Mr Thwaites was a member of the Cabinet who established the Commission", "MAS documents (having been) illegally given to and received" by him when an opposition member of parliament; or because of his campaign over the years with respect to the Service? In my opinion the answer to each part of that question is no. At one stage the plaintiff sought to link Mr Thwaites' position as Deputy Leader of the Labor Party with the fact that the Commission was set up by DPC. The connection was not established. Assuming, as would be reasonable, that Mr Thwaites was anxious to see questions involving the Service dealt with by an inquiry with coercive powers, that of itself takes the plaintiff nowhere. Beyond that, it would be mere speculation to conclude that Mr Thwaites had a role either in framing the terms of reference or in the selection of the Commissioner.

732. It was said for the plaintiff that the Commissioner is a man with party political connections. The evidence shows that he was a member of the Labor Party between the early 70s and about 1981. It also shows that he was a subscriber to the 1974 advertisement to which I referred a little earlier. I am prepared to assume that he was a subscriber as a Labor Party supporter, and not as an apolitical individual who considered that "it (was still) time".

735. Where do these matters lead? In argument, counsel for the plaintiff did not contend that appearance of prejudgment adverse to the plaintiff might be discerned from those long-ago circumstances. The vice was, he submitted, that the Commissioner did not disclose those past connections with the Labor Party, the party which had set up this politically-charged Commission. Disclosure should have been made, counsel contended, at some time early in the Commission's sittings; and in any event in answer to letters dated 1 and 4 May 2000 sent by the plaintiff's solicitors to him.

738. In my opinion those submissions do not reflect what the hypothetical observer might derive from the revealed circumstances. The Commissioner's connection with the Labor Party was long ago. Moreover, his role as a subscriber to the 1974 advertisement was raised in the State Parliament late last year, and was the subject of a newspaper article on 26 December 1999.

741. The plaintiff's side rather suggested, in evidence and submissions, that no one reads parliamentary debates or reads the paper on Boxing Day. I do not accept those propositions. Further, the plaintiff's argument might be said to be not altogether consistent. Paragraph 23 of Mr McCabe's affidavit sworn 12 May 2000 contains numerous references to Hansard in the period October 1994 to May 1999 in connection with Mr Thwaites' campaign concerning the Service.

744. Next, when the Commission began its hearings no represented party asked the Commissioner to stand down on the ground of apprehended bias, or sought any information about the Commissioner's association with the Labor Party. The observer might sensibly think that, unless none of the represented parties or their counsel had read the parliamentary debates or the newspaper of 26 December 1999, the subject matter of the debate and the newspaper article was inconsequential.

747. Again, the article published on 26 December 1999 pointed out, and the informed observer should be taken to know, that the Commissioner had been involved in the Royal Commission into the Ships Painters and Dockers Union, that he had at one stage worked for the National Crime Authority, and that he had been appointed an investigator to recover assets from the deregistered Builders' Labourers Federation. The observer could be forgiven for thinking that the Commissioner had undertaken a variety of tasks which did not suggest that he was a tool of the Labor Party or the unions.

750. The observer would not think that the plaintiff's case was advanced by the Commissioner's refusal or failure to answer the two letters written by the plaintiff's solicitors after this proceeding had been commenced. He would understand why the Commissioner would not answer letters which were so obviously written to further the plaintiff's case in this proceeding.

753. Counsel for the plaintiff submitted that an apprehension of bias on the part of the Commissioner adverse to the plaintiff was to be discerned by analogy with R v Bow Street Metropolitan Stipendiary Magistrate and Ors, ex parte Pinochet Ugarte [1999] UKHL 1; [1999] 1 All ER 577. In my opinion there is no such analogy. The basis upon which Pinochet was decided is made clear in the speech of Lord Browne-Wilkinson at 586 b-e and 587 j-588 j.

756. Reference was made to Carruthers in the course of submissions. The circumstances of the present matter cannot be compared with the situation which arose in that case. The conduct of one Commissioner there, as described by Thomas J, was rather remarkable. Even if it was permissible to decide the outcome of one case by reference to the facts of, rather than the principle established by, another case, what happened in Carruthers would not provide a guide to resolution of the plaintiff's case so far as it turns on the Commissioner's past association with the Labor Party.

759. Counsel for the plaintiff contended at the outset, however, that the Commissioner's past political connection should be viewed in the context that, "highly unusually", he helped to finalise the initial terms of reference of this "very political" Commission, a Commission which, unusually, required an investigation into illegality.

762. The observer would not conclude that this contention placed a different light upon the Commissioner's past political connection with the Labor Party; nor would he conclude that, considered independently, either aspect of the contention established prejudgment of the Commissioner adverse to the plaintiff. The reasons are these:

765. The evidence of Sir Edward Woodward, Mr F.X. Costigan (by his affidavit sworn 15 May 2000) and Mr Ruddle (by para 10 of his affidavit sworn 15 May 2000 and exhibit JPR 3 thereto) showed that very commonly a Commissioner or Board of Inquiry is consulted about the terms of reference before they are promulgated. Such consultation is by no means unusual.

768. Counsel for the plaintiff submitted, however, that what was unusual was this: that the Commissioner in the present case had input into the substance of the terms of reference after consideration of background issues or material or the like. He did not merely ensure that the terms were clear and unambiguous, that the questions being put were ones which he was competent and willing to enquire into. Counsel relied upon Sir Edward Woodward's evidence that he would not have expected to be asked to have input into the substance of a commission; that he had never been in the position of being involved in an ongoing debate as to what the terms of reference should be.

771. Then counsel referred to a letter and attachments which a Mr Killey of DPC faxed to the Commissioner on 8 December 1999. It was apparent, he submitted, that the terms of reference had been changed significantly in the interim between 8 December and 21 December 1999, the latter date being the date on which the Letters Patent issued. The Commissioner must be taken to have had a hand in that exercise.

774. The letter of 8 December 1999 and attachment 1 were in these terms:

"As discussed please find enclosed: 1. Draft Terms of Reference as presented in response to the Independents Charter; and 2. Summary of Auditor-General's Report No 49. In considering the terms of reference it should be noted that: * Term 1 is to be altered so that it will deal with specific practices, and not the entirety of the matters in the Auditor-General's report. * Term 2 is to be altered so that it will be limited to a specific practice, known as phantom calls - under which it is alleged that the Intergraph staff made planned telephone calls to allow Intergraph to meet the contract standards regarding telephone answering times. * Term 5 is to be removed."

The Attachment

"Draft Terms of Reference The Royal Commission is to be appointed for the purpose of inquiring into and reporting upon the following matters: 1. The matters raised in the Auditor-General's special report No.49 into 'Contracting and outsourcing practises of the Metropolitan Ambulance Service' (the MAS). 2. Whether there has been any, and if so what, improper or illegal conduct in relation to the reporting of performance standards pursuant to contracts entered into by the MAS. 3. The manner in which government agencies and public officials have dealt with or responded to requests pursuant to Freedom of Information Act since 1 January 1994 relating to: a. contracting and outsourcing by the MAS; b. matters arising out of, or related to, the same (including police investigation documents). 4. Whether there has been any: a. failure to properly disclose; or b. improper conduct in relation to; documents relating to ambulance contracts or outsourcing practises. 5. Whether, in relation to the above matters, there is evidence admissible in a Court of Law sufficient to place any person on trial for any offence or to initiate disciplinary proceedings."

784. First, there is no doubt that the terms did change in the period between 8 December and 21 December 1999. For the most part the changes had the effect of delimiting what would otherwise have been an extremely wide inquiry.

787. Second, changes were undoubtedly necessary, not only because the inquiry would otherwise have been extremely wide, but because the draft terms were, as the letter showed, simply a draft "as presented in response to the Independents (sic) Charter". They were not suitable for promulgation in Letters Patent.

790. Third, according to the plaintiff's case the most significant change was the deletion of draft clause 5; for it meant that, in the case of inquiry about possible "illegal conduct", it was no longer necessary to consider whether admissible evidence sufficient to place a person on trial was available.

793. Let it be accepted that the deletion of draft clause 5 made a significant change to the draft terms. There is not the slightest evidence that the Commissioner had anything to do with it. The letter of 8 December, at the third dot point, suggests the contrary. Counsel for the plaintiff sought to draw a different conclusion by reference to the opening line of the letter. I do not regard that argument as at all persuasive.

796. Fourth, consider the other changes to the draft terms which took place between 8 December and 21 December. Even if the plaintiff did have some input into their precise terms, the die was already cast by 8 December, as the first and second dot points of the letter show. Moreover, attachment 2 to the letter, which I do not set out, was a summary of the Auditor General's report. It very clearly proposed specific lines of inquiry for the proposed Commission.

799. In the event, the plaintiff's submission fails because, all other matters apart, there is no evidence that the Commissioner had any input of substance into framing the terms of reference; or, put at its very highest from the plaintiff's standpoint, that the Commissioner had an input beyond putting into lawyer's language that which those charged with setting up the Commission had determined should be the substance of the Commission's inquiry.

802. Even if there had been evidence that the Commissioner had contributed in substance to framing the terms of reference it would not follow that, considered independently or in combination with other matters, the existence of a reasonable apprehension of bias by the Commissioner against the plaintiff was thereby made out. That would be an unreasonably long bow to draw.

805. I turn to the plaintiff's contention that began with Mr McCabe deposing in his first affidavit that in his experience it was unusual for a government to establish a Royal Commission into illegality; and which was developed by Mr McCabe's second affidavit, sworn 15 May 2000, in which he deposed that in Victoria between 1960 and 1980 five out of 43 Commissions and Boards of Inquiry had terms which required investigation of illegality or possible illegality, but that this Commission was particularly unusual because it followed prolonged police investigation which had led to a decision, eventually, that no person should be charged.

808. The starting point of the argument is that a term of reference which requires investigation of possible illegality is unusual. I do not accept, nor would a reasonable observer think, that this is the case. Since 1970, the Kaye Inquiry into the Police Force, the Beach Inquiry into the Police Force, the Gowans Inquiry into Land Purchases, the Royal Commission into Land Purchases over $100,000, the Commonwealth and State Royal Commissions into the Federated Ships Painters and Dockers Union, the Commonwealth and State Royal Commissions into the activities of Terrence Clark, the Commonwealth and State Royal Commissions into the Builders' Labourers Federation, the Royal Commission into the Meat Industry, the Royal Commission into the Tricontinental Group, the "WA Inc" Royal Commission and the two State Commissions into the attempt to bribe JG Cox have all required investigation of possible illegality. I do not suggest that the list is exhaustive.

811. Next, an observer would think there was nothing to the point that the matters for inquiry have already been the subject of police and other investigations; or that a police investigation culminated in a decision not to prosecute. The earlier investigations were inhibited by lack of coercive powers. The Auditor General's report specifically said that there was probably need for a compellable inquiry to determine whether there had been, at worst, corrupt activity.

814. Even if it was unusual for a term of reference to require investigation of possible illegality, even if it was the more unusual for there to be such a term when police and other investigations had already been made, I cannot see that this might reasonably lead to an apprehension that the Commissioner might have adversely prejudged the conduct of the plaintiff. The draft terms of reference sent to the Commissioner on 8 December 1999 already made use of the phrase "improper or illegal conduct". He was not its author. What could be drawn from his acceptance of an area of inquiry which, judged by past instances, was not at all unprecedented?

817. It is now convenient to deal with the plaintiff's submission, made after the terms of reference were amended on 30 May, that the Commissioner could be seen to have been involved in a highly political event, from which involvement prejudgment adverse to the plaintiff might reasonably be apprehended.

820. The amendments effected on 30 May did two things. First, they deleted term of reference 3. Second, they substantially reduced the field of inquiry made necessary by term 7.

823. So far as the plaintiff is concerned, any direct effect of the changes could only be beneficial. Term 3 and a little of the deleted part of term 7 opened up at least the prospect of inquiry into his conduct.

826. Plaintiff's counsel submitted, however, that the alteration to term 7 focussed attention on only a few requests made under the Freedom of Information Act, and that the requests referred to (particularly in term 7 (a) and (b)) were highly political - calling into question, either certainly or possibly, the conduct of a former ministerial adviser and one or more ministers in the former Coalition government. There had been political prioritisation. The Commissioner's assumed hand in such an amendment reasonably gave appearance of animus against the plaintiff, who was an obvious target of other terms of reference. It was wrong for a Commissioner to be involved in amendment of terms of reference without consulting other represented parties.

829. In my opinion an informed observer could not reasonably derive from the 30 May amendment an apprehension that the Commissioner had prejudged the plaintiff's conduct adversely. If it be assumed that the Commissioner was personally involved in the delimiting of term 7, I should have thought that the requests identified by the new term 7 were obviously the matters justifying inquiry. One had been the subject of recommended prosecution by the Operation Caledon investigation. The other had been the subject of comment by a Judge of this Court. Their political implications may be conceded. That does not deny that they would independently be obvious and valid subject matter of a narrowed down inquiry.

832. Next, for the Commissioner to be involved in an amendment of substance - if he was involved in the amendment, and if it was an amendment of substance - is not extraordinary: see paragraph 7 of Mr Costigan's affidavit. The evidence given by Sir Edward Woodward at T615 addressed a different issue.

835. Again, it is not correct to say that the substance of the revamped term 7 or the new term 7A were not before the Commission as term 7 was originally drafted. They were, though the requests were not identified in just the same way.

838. Further, and as I earlier said, the direct effect of the amendments could only be to the plaintiff's apparent advantage.

841. I turn to the allegation that the existence of a reasonable apprehension of bias by the Commissioner arises from "the involvement of members or former members of the police in the Commission who conducted or were associated with operation Caledon". The men fitting this description, as I noted when dealing with the Forbes matter, are Messrs Bowles, Jeans and Sheridan.

844. The document "Points of Principle Raised by Firman's Application" puts the matter this way: the police investigation recommended prosecutions. It should be inferred that persons concerned in that investigation started their investigations for the Commission with a clear predisposition. Any (apprehended) bias by the investigators necessarily creates the risk of bias in the Commissioner via the material provided by counsel assisting. The same general principal applies in the case of Mr Sheridan, whose position is that of liaison officer between the police force and the Commission.

847. The plaintiff's "Outline of Argument" raises a somewhat different contention: Operation Caledon was a failure. The DPP did not proceed with prosecutions. The investigating police are likely to be disgruntled. So it may be inferred that they started their investigations for the Commission with a clear predisposition; and so on.

850. I have already described, and will not repeat, the role of each of Messrs Bowles, Jeans and Sheridan in connection with Operation Caledon, the circumstances of the engagement of Messrs Bowles and Jeans by the Commission, the nature of Mr Sheridan's role as police liaison officer, and generally the work that each of them undertakes for the Commission. I should note a few additional matters.

853. First, Mr Bowles' curriculum vitae shows him to be a man of very considerable academic and practical experience (both in Australia and overseas) in business fraud and corporate governance, and that he is now principal of his own business, having retired from Victoria Police in 1997 after 38 years of service.

856. Second, Mr Bowles left the Major Fraud Group not long after Operation Caledon began. He left before a search warrant was executed on the plaintiff. He had nothing to do with the recommendations for prosecution that were eventually made. His evidence was that he knew of no disgruntlement amongst police officers involved in the investigation - that is, arising out of the decision not to prosecute.

859. Third, Mr Jeans prepared that part of the Operation Caledon report which listed possible offences. He had been brought in to provide legal advice. His views were sought as to what possible offences may have been committed. He believed that the possible offences identified in the report were possible offences. In reaching his opinion he examined the file, which included statements taken from the plaintiff and others.

862. Fourth, Detective Chief Inspector Sheridan arranged for a large quantity of material accumulated by the Major Fraud Group to be provided to the Commission.

865. Where does all the pertinent material lead? First, Detective Chief Inspector Sheridan's involvement with the Commission could not on any view aid the plaintiff's case. Mr Sheridan has done no more than ensure that the police files have been given over to the Commission. The fact that the files recommended the prosecution of some persons is beside the point. The Commission was entitled to and did seek the material. Mr Sheridan's view that the laying of changes was warranted takes the plaintiff nowhere. There is no evidence that Mr Sheridan is in a position to influence the Commissioner. Even if he was, Operation Caledon did not recommend that charges be laid against the plaintiff.

868. Next, Mr Bowles. His involvement with Operation Caledon was, as I have said, only short-lived. He is not shown to have had any stake in its outcome, not any reason to be disgruntled by the decision not to prosecute. One might think that he would regard material which it generated seriously; but that is far from saying that a reasonable inference could be drawn that he would not consider it critically, or that he might distort evidence gathering by the Commission in order to support its broad thrust. Having been recommended for appointment by the Commissioner, one might think that he would have the Commissioner's ear. But there is no reason to apprehend that he might attempt to influence the Commission to a particular view of things adverse to the plaintiff.

871. Finally, Mr Jeans. His role in Operation Caledon was not one of gathering material, but of assessing its possible significance from a legal standpoint. It would be a large step to suppose that he might have brought prejudgement against the plaintiff to his work with the Commission, a larger step again to suppose that he might have pursued any such prejudgment in his investigative work with the Commission. There is no evidence upon what it could be concluded that Mr Jeans has the ear of the Commissioner.

874. In the event, I consider that there is no fair basis for apprehending prejudgment adverse to the plaintiff on the part of any of the three men; and that there is no reason again for apprehending prejudgment on the part of the Commissioner as an indirect consequence of the asserted prejudgment of those other persons.

Absence of statement of matters being inquired into; alleged receipt of prejudicial, non probative and irrelevant evidence: Paras 1.2(c) and (i) of the Particulars

879. Counsel for the plaintiff submitted that apprehension of bias adverse to the plaintiff and other denial of procedural fairness was to be discerned from the absence of any statement (by the Commissioner) of matters being inquired into, and by the receipt of prejudicial, non probative and irrelevant evidence.

882. In connection with the allegation of other denial of procedural fairness an issue about funding was agitated. Plaintiff's counsel submitted that because the Commissioner had not delineated the ambit of his inquiry, but had rather admitted a body of prejudicial, non probative and irrelevant material, the length and complexity of the inquiry had blown out. He submitted that procedural fairness required that the plaintiff be represented - that is, so that he could be heard. But public funding which would enable him to be represented had thus far been limited in both extent and duration.

885. At the time when these submissions were made an application for further funding had been made by the plaintiff. The government's response was unknown. Then, on 7 June, when these Reasons were effectively complete, I was provided with correspondence whose effect was this: that the government had recently offered, as an interim measure, to fund the plaintiff's representation before the Commission on a daily amount basis for a very considerable number of days, subject to a want of good faith obligation to make reimbursement and to certain accounting conditions; and that the plaintiff's side had demurred to the offer, particularly objecting that it was not made on a lump sum basis, and that the daily amount which had been set was in any event too low in the plaintiff's particular circumstances.

888. In my opinion there are aspects of the matters raised by paras 1.2(c) and (i) of the Particulars which are apt to raise some concern. But they do not presently lead either to apprehension of bias adverse to the plaintiff or to a conclusion that he has otherwise been denied procedural fairness.

891. At one level it is true to say that the Commissioner has not stated the matters into which he is inquiring which may fall within the terms of reference. But the broad thrust of the subject matter for inquiry is set out in the Auditor General's report, the terms of reference and the opening of counsel assisting - to which may be added a reference to the Operation Caledon report. The thrust of the inquiry, to an extent, has also been further focussed by the improper conduct ruling - despite what has been said about its breadth and imprecision. No allegation has yet been formulated against the plaintiff. None may ever be formulated. The Commissioner has made it clear that if any allegation is formulated, the plaintiff will be given a specific opportunity to meet it. I do not consider that the circumstances which I have just outlined can properly found complaint at this stage of the Commission's work.

894. Next, it is the case, as I have said more than once, that the Commission has admitted a miscellany of material which, even on a very wide reading of the terms of reference, might be thought to have non-existent or slight probative value; but which, on the other hand, might be thought to have prejudicial effect (adverse to the plaintiff) which is not inconsiderable.

897. I think that the informed observer would have some concern about the breadth of the material admitted, notwithstanding the investigative nature of the Commission, notwithstanding that the material was for the most part admitted when the Commission was feeling its way, and notwithstanding a likely wish on the Commissioner's part to leave no witness feeling that he had been denied an opportunity to say something that he desired to say.

900. On the other hand, I consider that the informed observer would realise that an opportunity remains, and may well be taken as the Commission's work progresses, for the Commissioner to indicate that some possible issue is no longer alive, or that certain material will not be relied upon in addressing an issue that does remain alive. The Commissioner has already given one indication of the first type.

903. Because of the opportunity to which I have just referred, I do not consider that, at present, the plaintiff can successfully contend that receipt of material of the kind which I have described has in fact or by appearance denied him procedural fairness.

906. The next matter is this: The receipt of material of the kind now under consideration inevitably puts a person such as the plaintiff in the position of having to prepare to meet each assertion made and opinion offered - regardless of its apparent insubstantiality - on the off chance that the Commissioner might consider it to be of importance. That is likely to be time consuming and costly - costly because in the necessary evaluation of such material and the preparation of a response a trained legal mind is required. It is highly improbable that any ordinary person could meet the financial demands of representation unaided. It is not suggested that the plaintiff is out of the ordinary in that respect. It may be, if the plaintiff was not provided with funding which enabled him to be adequately represented, that a question whether he had been denied procedural fairness could possibly arise. But that need not be decided. At this stage it is not possible to say that the issue of funding has been resolved adversely to the plaintiff. The most that can be said is that, as a matter of mere assertion, the government on the one hand and the plaintiff's advisers on the other hand have some difference of view about the adequacy of the funding which has been offered.

Improper conduct: paragraphs 1.1(n) and (t), 1.2(b) of the Particulars

911. As I noted earlier, a number of the terms of reference require the Commissioner to inquire into and report whether any person engaged in "improper conduct" in connection with a specified matter, that term not itself being defined.

914. The Commissioner was not asked by any counsel at the outset of the hearings to indicate what meaning he intended to give the term; though I note that, in a letter which he wrote to senior counsel assisting, dated 27 February 2000, Dr Paterson, former Secretary of the Department of Human Services, referred to its varying content.

917. Public examination of witnesses commenced on 15 March 2000. The content of the term was first raised - by counsel for the former administrator of the service, Mr Perrins - on 23 March 2000. The Commissioner said that, "We ... are endeavouring to develop a view about that. ... At some stage I think it is probably right that I should try to give some indication as to what I think it means. ... I'm not sure that now, at this stage of the proceeding, it is appropriate to come to a final view what the word means because the meaning of the word is dependent on the context of this Commission. ... in the meantime, it may be more appropriate for all of us to struggle with our own subjective view about what improper means. ... It may be that I need to hear the evidence of some witnesses, that is expressing their subjective view about what is improper, in order that I can come to a final conclusion about it." The Commissioner also referred to Mr Chettle's request for a definition as "fair enough".

920. In the course of the discussion the Commissioner said that counsel assisting had already endeavoured to come to a view about what "improper conduct" meant; and that he had been given the benefit of their work. Senior counsel assisting invited "provisional submissions". At the end of the day, he submitted, "it is the factual material as found ... which will provide the proper context in which to assess the meaning of ... improper".

923. On 27 March counsel for the plaintiff made a submission in which he raised a number of complaints about the way in which the Commission hearings were unfolding. In the course of his submission he urged the Commissioner to "work as quickly as possible towards your ruling as to what improper conduct is ... ". The Commissioner indicated that a debate could be had about the matter at a suitable time.

926. The matter was raised again on 31 March, mainly for the purpose of setting a time for the debate. The Commissioner made it clear that he did "not propose to, in effect, give a ruling that says 'improper means the following' without having heard all the evidence."

929. The debate took place on 5 April. Oral submissions were made and a number of written submissions were relied upon. I do not understand any of those submissions to have contended that the Commissioner was obliged at that particular stage of his inquiry once and for all to define the content of the term "improper conduct".

932. The Commissioner said on 5 April that he did not intend to give a ruling (RCTr 2382). He expressed uncertainty about his intended course on succeeding days (RCTr 2542-2543 and 2671-2672).

935. In the event, on 10 May 2000 the Commissioner handed down a preliminary ruling on improper conduct. Paragraph 83 sets out his conclusions, which is its core.

938. The amended originating motion alleges that there is reasonable apprehension of bias on the part of the Commissioner adverse to the plaintiff by reason, inter alia, of "the Commissioner's failure to date to lay down guidelines as to the meaning of 'improper conduct'," and by the Commissioner's conduct in providing, without explanation, a ruling since the commencement of the proceeding, that ruling giving the term [a meaning] that is unreasonably and wrongly wide.

941. Much the same conduct is alleged to constitute a denial of procedural fairness to the plaintiff.

944. As I understand it, the plaintiff's complaint is that the Commissioner's failure to give a ruling prior to the commencement of this proceeding denied him procedural fairness and properly gave rise to apprehension of bias; whilst the fact that a ruling was later given, and its form, gives rise to a similar denial and a similar apprehension.

947. As to the alleged denial of procedural fairness occasioned by the Commissioner's failure to provide a ruling (before this proceeding was commenced):

* There could be no doubt that the plaintiff was on notice from the outset of the Commission of the matters in connection with which his conduct was to be investigated and of the broad thrust of the way in which it might be said that his conduct had been improper in connection with those matters. That was evident from the terms of reference, the Auditor General's report to which preamble A of the terms referred, and the opening of senior counsel assisting. As to the report, see particularly the foreward, paragraphs 1.4-1.8, 1.11-1.13, 2.8 (expanded upon in the balance of Part 2), 3.13, 3.19 and 3.32. I need not refer to Part 4, term of reference 3 now having been deleted.

* Counsel for the plaintiff seems not to have had any difficulty understanding the matters in connection with which his client's conduct was likely to be investigated and the type of conduct which in that context might meet the description "improper". He made no relevant submission until 27 March, and even then did not submit that the Commission should suspend its sittings until a ruling was given. Thereafter, it may be added, the Commissioner acted quite quickly to bring the matter on for debate.

* I doubt, but it is not a decisive consideration, that the Commissioner was under an obligation - that is, in order to give the plaintiff procedural fairness in the context of a Commission such as this - to provide a ruling at what was a quite early stage in his inquiry. The plaintiff had not yet been called, and it was likely that most of the few witnesses who had been called would need to be recalled when the Commission's document data base was complete.

No authority was cited in support of there being an obligation upon the Commissioner to give a ruling at that stage. Counsel for the plaintiff did, however, refer to and rely upon paragraphs 78 and 79 of the 1966 (Salmon) Royal Commission on Tribunals of Inquiry. At paragraph 79 the Commissioners proposed that such a tribunal should take an early opportunity of explaining in public its interpretation of its terms of reference; and that "as the inquiry proceeds it may be necessary ... to explain any further interpretation ... placed on the terms ... in the light of the facts that have emerged".

Those observations may be said to reflect the desirability of a Commissioner giving an early indication of the meaning he provisionally gives to a term of reference - if only to concentrate attention on what evidence could be relevant. But it is another thing to say that failure to provide such a ruling will, in a given case, constitute a denial of procedural fairness to a person involved in the Commissioner's inquiry.

Counsel for the defendant relied upon Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 for the proposition that in giving his preliminary ruling the Commissioner did more than he was obliged to do. But that case did not raise the present point.

There have been many instances in which, the past, Royal Commissions and Boards of Inquiry have had to inquire into improper conduct. No instance was drawn to my attention of a case in which a Commission or Board has given, at an early stage in its hearings, a ruling - final or preliminary - as to the meaning to be given to the term.

The evidence of Sir Edward Woodward was that, in pertinent matters in which he had been involved, he could not bring to mind a case in which the wording required definition at an early stage, or in the course of the hearing.

I was referred to the final report of the Commission into the Commercial Activities of Government ("WA Inc"). Paragraphs 1.6.57 and following suggest that it was only at a very late stage that the Commission expressed its own conclusion as to the meaning which was to be given to the term in the various contexts of that inquiry.

The evidence of Sir Edward Woodward and the report of the Western Australia Royal Commission, bearing in mind the absence of other material suggesting that the term has been defined at an early stage by Commissions or Boards of Inquiry, has this significance: whilst a prior course of conduct does not establish principle, it may be some guide to whether an asserted principle exists.

960. I turn to the plaintiff's contention that the Commissioner by his preliminary ruling gave an extremely wide and imprecise meaning to the term "improper conduct"; and that his doing so constituted a denial of procedural fairness to the plaintiff because

* It was very general and therefore of little guidance to him;

* there is no distinction between negligence and carelessness, yet paragraph 83.13 of the ruling appears to draw some distinction;

* if improper conduct could be constituted by careless conduct that would radically change the scope of the terms of reference;

* the expression "obligation of care and responsibility" in paragraph 83.11 is uncertain;

* If improper conduct could mean negligent or incompetent conduct, it would open up as being relevant matters beyond the apparent periphery of the terms of reference (as to this submission, see the reference in paragraph 72 of the Commissioner's ruling to "negligence or incompetence or inefficiency").

968. I do not understand this proceeding to raise for consideration the question whether the Commissioner's preliminary ruling was so unreasonable that it could not stand; or whether for some other reason it was fatally flawed. But even if those matters were open for argument, it is not an argument which counsel for the plaintiff pursued. It is not for me, in those circumstances, to embark upon my own interpretation of the term. Whether I might have doubts about aspects of the Commissioner's ruling is not to the point. I should accept it at face value. The situation before me is not one in which it is complained that an adverse finding by a Commissioner was based upon an interpretation of a term of reference which was simply not available.

971. A principal criticism of the ruling was that the definition of the term was so wide in its possible application, and at the same time so imprecise, as to deny the plaintiff the opportunity of understanding what improper conduct may be alleged against him. That criticism seems to me to confuse the task of giving meaning to the term and describing its possible application in the plaintiff's case. I do not accept that, if he was obliged to give a preliminary ruling as to the meaning of the term, the Commissioner was then obliged - that is, before he formulated any allegation against the plaintiff - to explain its possible operation in the plaintiff's case.

974. I turn to the contention that the events which occurred in connection with the improper conduct ruling (in which I include events leading up to the ruling being made, and the ruling itself) reasonably give rise to apprehension of bias on the part of the Commissioner. I cannot see how they could do so. The Commissioner was not asked to make a ruling at the outset. When asked, he fairly promptly brought the matter on for argument. He vacillated whether a ruling should be given, which I do not consider is fairly a matter of criticism. His ruling was evidently carefully considered. A reading of the written and oral submissions advanced by counsel assisting and other counsel gives, to greater or lesser extent, explanation why the Commissioner expressed the conclusions that he did. It could not reasonably be apprehended that the Commissioner gave the term a very wide meaning so as to facilitate an attack upon the plaintiff. Counsel for the plaintiff fairly conceded, I should add, that the written submission advanced on his client's behalf to the Commissioner (which argued that the term should be given a particular confined meaning) was not maintainable.

979. The plaintiff alleges, by paragraph 1.1(o) of the Particulars, that there is apprehension of bias by reason of the Commissioner's refusal to adopt a Represented Parties Charter submitted by his counsel; and by the Commissioner's reasons for that refusal. The refusal is also said, by paragraph 1.2(g) of the Particulars, to constitute a denial of procedural fairness to the plaintiff.

982. The circumstances giving rise to the allegation lie thus: On Monday 27 March 2000 counsel for the plaintiff made a submission to the Commissioner in which he expressed concern that "there's a procedural problem developing in the hearing of your commission". He referred to what had been said by senior counsel assisting at the outset of the public hearings concerning the approach which would be taken to the examination of witnesses. He contrasted the treatment of the witnesses Henderson and Morris at the hands of counsel assisting (which he claimed was consistent with the described approach) and the treatment of the witness Paterson (which he claimed was inconsistent with that approach). He did not quibble with the Commissioner's ruling that what he described as "soap box oratory" should be received from Mr Morris. His complaint was that Dr Patersen had been accorded very different treatment - both in the witness box and prior thereto (the witness had not been approached by Commission staff to make a statement). Ultimately, he said, he was submitting that the Commissioner should make "certain rulings and indicate a certain disposition to put into place .. an appropriate way of dealing with procedural fairness". He submitted that it was appropriate that counsel assisting examine witnesses in a non-leading or neutral way, and reserve cross-examination techniques for re-examination. He submitted that there should be a procedure established by which counsel assisting would serve written notice on persons who were perceived to be potential targets of findings of illegality about matters upon which those persons should be aware they might be challenged; and that challenges ought not be permitted until the Commission's document database had been available for a reasonable period of time. He further submitted that counsel assisting should bring to the attention of a person who was so challenged any documents upon which they might be relying. He sought a ruling as to the meaning which the Commissioner intended to give to the term "improper conduct".

985. The submissions, see RCTr 1497-1518, were made in a deferential and non-provocative way. They were in part supported by counsel for several other represented parties. Senior counsel assisting responded: RCTr 1523-1528. In the course of doing so he justified his examination of Dr Paterson, and criticised parts of the witness's evidence in very forthright language. He described the submissions made by counsel for the plaintiff as "completely ridiculous".

988. The Commissioner rejected the submissions advanced for the plaintiff. In the course of doing so, he said that whilst there had been variation in the procedure it was not a variation that occasioned any unfairness: RCTr 1532-1534. He specifically rejected any suggestion that the conduct of the Commission was motivated by any particular agenda or bias.

991. At the conclusion of the hearing on Monday 27 March counsel for the plaintiff ceased to attend the Commission. He did not attend again until Friday 31 March. By then senior counsel had been engaged and the charter, so-called, had been prepared. It is very clear from the evidence of the plaintiff and of Mr McCabe, and also from written submissions provided to the Commissioner in support of the document, that the plaintiff's side viewed its acceptance, or at least acceptance of its essentials, as the Commission's last chance to give the plaintiff procedural fairness, and to avoid an intractable conclusion that there was reasonable apprehension of bias on the part of the Commission.

994. It was in substance suggested, in cross-examination of the plaintiff and Mr McCabe, that presentation of the charter was a stunt or sham - the Commissioner being presented with a document whose contents he could not have accepted just so that his refusal could be relied upon as a plank in this proceeding. Attention was drawn to the peremptory language of the document and to intemperate language used in the related written submission for the plaintiff. But in his closing address the Solicitor General specifically disclaimed any submission that the presentation of the document was a stunt or sham; and he specifically endorsed my provisional conclusion that, whether rightly or wrongly, Mr McCabe, a solicitor of many years experience, held a very strong view about the way in which the Commission had been conducted - that is, in the period to and including 27 March. The Solicitor General continued to contend, however, that the charter was not one that the Commissioner could have accepted; and that its rejection could occasion neither reasonable apprehension of bias nor a conclusion that the plaintiff had otherwise been denied procedural fairness.

997. That takes me to the document itself. This is what it said:

"REPRESENTED PARTIES' CHARTER A. Counsel assisting will not be permitted to: - cross examine witnesses in-chief (reserving same for re-examination); - belittle or intimidate witnesses. B. Subject to any privileges that might exist, the Commission will permit all drafts of witness statements and any other material supplied by a witness to it that was used in the process of preparing any witness statements to be inspected by counsel for the purpose of cross examination of that witness. C. Counsel assisting will not show to witnesses documents supplied to them by other counsel in advance of any cross examination if requested not to do so. D. The Commission shall keep the represented parties fully informed about any alterations or likely alterations to the date by which it must deliver its report to government. E. The Commission shall provide the represented parties with a descriptive timetable (to be kept updated as necessary) of all proposed future public hearings. F. Until:

(i) the Commission document data base has become fully accessible to the represented parties for a reasonable period of time;

(ii) the Commission has given its present view about the meaning likely to be attributed by it to 'improper conduct';

(iii) counsel assisting have informed either the Commission in public or any represented party of the likely nature of any allegations against that represented party and the evidence proposed to either prove or disprove them -

Counsel for represented parties shall have the right to defer their cross examination or further cross examination of any witness called in the current round of hearings and are assured that those witnesses will be recalled by the Commission for the purpose of further cross examination upon request by any represented party.

G. Represented parties who might be the subject of adverse findings and who counsel assisting propose to challenge in any way will not be required to give evidence without notice of the kind referred to in paragraph F(iii) above.

H. Represented parties affected by the Forbes article will be kept informed by the Commission of all matters that the Commission is presently informed about concerning the article including:

- being granted access to the transcripts of any confidential hearings involving Forbes on the matter;

- being granted access to all and any other relevant material on the issue in the possession of the Commission;

- being fully informed about what further steps the Commission has taken and may be planning to take in relation to the article both in respect of Forbes himself and any internal Commission investigations into the matter and internal action by the Commission concerning the matter."

1004. Senior counsel for the plaintiff first mentioned the document to the Commissioner on 31 March 2000. Counsel for the plaintiff indicated that written submissions would be filed. The matter was stood over until Monday 3 April. What occurred in connection with this matter on 31 March is disclosed at RCTr 1965-1972.

1007. On 3 April senior counsel assisting contended that the submissions made for the plaintiff were only an amplification of submissions made on 27 March, and that the matter should be disposed of by giving other parties the opportunity of making written submissions, the plaintiff an opportunity of making further written submissions, and then (implicitly) the Commissioner ruling upon the matter. The course proposed was not news to the plaintiff's side. Senior counsel had been told over the intervening weekend that the Commissioner would not entertain oral submissions. The Commissioner's remarks at RCTr 2097 show that the Commissioner and counsel assisting had been involved in that decision. Be that as may, the Commissioner indicated on 3 April that he proposed to follow the course outlined by counsel assisting. He rejected the submission of senior counsel for the plaintiff that he be permitted to speak to the charter; and he declined a request that he rule immediately. Submissions made for the plaintiff, I add, were at times not expressed in temperate language. The relevant transcript is at RCTr 2092-2100.

1010. Counsel for the plaintiff had filed written submissions in support of the charter on 31 March. Many of the matters now relied upon by the plaintiff were raised. I need not mention them. I do note that the submissions -

* contended that if the charter was not "essentially adopted" (or adopted "at least in its essential elements") the Commissioner "must" stand down. But they did not suggest - rather the contrary - that reasonable apprehension of bias did not already exist;

* asserted that "the conduct of this Commission has been an affront to common dignity". This perception was very apparently shared by Mr McCabe (see T 369,370). It was not the language of the law. I think that the Solicitor General was right to describe that submission as highly provocative.

1015. Various of the represented parties filed submissions in connection with the charter. I pause to make three points. First, none of the represented parties had been consulted by the plaintiff's side before the charter was produced before the Commission. Second, whilst it is true that no represented party embraced the charter in its entirety, it is not the case that the concerns out of which it grew were not replicated in certain of the submissions that were advanced. Third, the submissions made on behalf of a Mr Cameron raised apprehension of bias arising from the Commission's employment of past and present police officers who had been involved in Operation Caledon. That took up a matter briefly mentioned (at paragraph 14) of the submissions for the plaintiff.

1018. The Commissioner delivered his ruling on 7 April 2000. He began by describing some of the submissions made for the plaintiff as "unhelpful, provocative, sensational and offensive both to me and Commission staff". The substance of his ruling was this:

* he declined to direct counsel assisting to refrain "from cross-examining witnesses in chief when they first question the witness";

* he said that it was inappropriate to belittle or intimidate witnesses. That must be dealt with on a case by case basis;

* he declined to adopt a general rule that all drafts of witness statements and other material supplied by a witness and used in preparation of his or her statement be released for inspection before cross-examination, saying that release must depend on the circumstances;

* he declined to rule that counsel assisting not show witnesses documents supplied to them by other counsel in advance of cross-examination if requested to do so, saying that such matters depend on the circumstances;

* he accepted each of the matters raised by paragraphs D and E of the charter;

* he dealt with paragraph F by noting his earlier statement that witnesses would be recalled, if necessary, when the document database was fully accessible, by noting that he had reserved his decision on the issue of the meaning of the term "improper conduct", and by observing that authority compelled him to inform a party against whom an adverse finding might be made of that possible conclusion - offering that person an opportunity to meet it by evidence and by submission;

* in connection with the Forbes matter he said that he "did not propose to involve the other parties in the Commission's internal inquiry or to grant them access to the transcripts of any confidential hearings that relate to that matter";

* he said that he had no intention of removing any staff members of the Commission, or of debating the investigative methods used by the Commission's staff.

1030. I do not consider that principle required any different outcome in respect of the matters raised by paragraphs A-G of the charter. The Commissioner's position with respect to paragraph H was overtaken by later events. I have dealt with it separately. For the most part, I should add, the charter raised matters of procedure concerning which the Commissioner had, and was entitled to preserve, a discretion for exercise on a case by case basis.

1033. Notwithstanding the overall conclusion just expressed, I should briefly say something about paragraphs A, B, C, F(iii) and G of the charter.

1036. As to the first of these, in my opinion the Commissioner was not bound to preclude counsel assisting from cross-examining a witness from the outset. Hallett, supra, at pp.218-221 does not suggest that there is an inflexible rule to the effect contended for by the plaintiff. But it may be said, nonetheless, that very different treatment of witnesses by counsel assisting, which treatment is unexplained, may carry with it the apprehension that a particular result is being sought.

1039. As to paragraph B, in my opinion the Commissioner's approach was not in error. It could be expected no doubt, that drafts and materials used in preparation of statements would be disclosed where a witness's credit was likely to be in issue and where the drafts and materials opened up the possibility of inconsistency, or partiality.

1042. As to paragraph C, the Commissioner's refusal to bind himself to a course of conduct disclosed no error. No doubt, in practice, a request of the kind under discussion would be acceded to. Whilst a witness is a witness of the Commission, cross-examination by a represented party might be important to the Commissioner's assessment of the witness; and its impact could be significantly diminished, to the Commissioner's ultimate disadvantage, if the witness was given forewarning of a likely attack.

1045. I deal with paragraphs F(iii) and G together. I do not consider that the Commissioner was compelled to reach any conclusion other than he did. Neither of the authorities cited for the plaintiff to the Commissioner - Bretherton, supra, at 125 and Air New Zealand v Mahon [1983] NZLR 662 at 671 compel a contrary conclusion.

1048. It is not clear to me from the ruling at RCTr 2666 whether the Commissioner relied upon Cornall, supra, at 393-402 in resolving one or both of the matters raised by paragraphs F(iii) and G. Cornall had nothing directly to say about the matters raised by those paragraphs; but the Commissioner seems to have reasoned that, his obligation being as he set it out, it followed that there could be no obligation binding him to the course proposed by paragraphs F(iii) or G. I do not consider that such reasoning was objectionable.

1051. In the event, the ruling itself did not deny the plaintiff procedural fairness. As to apprehension of bias, even if it was theoretically possible that a ruling could be unexceptional and yet might reasonably lead to such an apprehension I am unable to see that the present case might lead to such a conclusion.

1054. Further as to apprehended bias, the plaintiff relied not only upon the substance of the ruling but upon the apparent milieu in which it was delivered (this is part of the subject-matter of Particular 1.1(p)). It was contended, in substance, that the reasonable observer would apprehend partiality against the plaintiff from the way in which the Commissioner and counsel assisting treated his counsel. It is in connection with the matter thus raised that I have referred in what would otherwise be unnecessary detail to the course of the debate.

1057. It is, I consider, the case that senior counsel assisting responded to the submissions made by junior counsel for the plaintiff on 27 March in a particularly vigorous way. It is further the case that the submissions filed for the plaintiff on 31 March used language which was not the language of the law, and was highly provocative. Further, the submissions made for the plaintiff on 3 April were at the least very forceful. Clear also it is that the Commissioner in his ruling commented adversely upon the way in which the plaintiff's counsel had advanced their client's case; and that he made several remarks critical of other aspects of the behaviour of junior counsel for the plaintiff in the course of the preceding debate.

1060. In all, the hypothetical observer would apprehend from what took place that there was a quite high level of tension between counsel for the plaintiff, counsel assisting and the Commissioner. He would not think that surprising having regard to the subject matter of the debate. He would not apprehend, from the circumstances described, that the Commissioner might not bring an impartial mind to bear in considering the plaintiff's conduct vis-à-vis the terms of reference.

1065. Paragraph 1.2(e) of the Particulars alleges that the plaintiff has been denied procedural fairness because he has been denied access to the data base of documents maintained by the Commission.

1068. Paragraph 1.2(h) alleges that the plaintiff has been denied procedural fairness because the Commissioner has refused to undertake to recall witnesses at the plaintiff's request after he has had reasonable access to the data base and the meaning of "improper conduct" has been clarified.

1074. The evidence shows that Commission staff have for months been collating and indexing in a number of ways a vast body of documents. The task is not yet complete. When it is complete represented parties will be given access to both the documents and the indexes (except where some issue of confidentiality arises).

1077. Counsel for the plaintiff asked, rhetorically, who is indexing the vast body of documents so as to classify each of them as highly relevant, relevant or marginally relevant (they being the categories of classification); and so as to relate each of them to one or more of the terms of reference?

1080. The task of classification must be undertaken by someone. The Commission has taken possession of the documents. For that reason, and because the Commission alone is likely to have the resources to apply to the project, Commission staff are logically the persons to do the work. There is not the slightest evidence to suggest that the persons undertaking the task of classification are applying other than fair minds to their work; nor is there any evidence upon which to doubt the competence of any of those persons to perform the task. There may well be, in some cases at least, an element of subjectivity in determining whether a particular document is pertinent to a particular term of reference; but I see no reason to conclude that the determinations in such cases are likely to be so flawed as to deny utility of the classification outcome to the represented parties.

1083. It is a corollary of what I have just said that the particular aspect of the plaintiff's submission now under discussion raises complaint prematurely. The classification process is as yet incomplete. The accuracy and reliability of its outcome has not yet been put to the test.

1086. Counsel for the plaintiff submitted, as is the fact, that a number of witnesses have so far been examined without either counsel assisting or the represented parties having access to the full body of documentation. Counsel pointed to the undesirability of that course and to the fact that the Commissioner has given no guarantee that a request for a witness to be recalled will inevitably be granted.

1089. The course which has been taken is, having regard to time constraints, understandable. It is also less than ideal. It is likely, if not inevitable, that witnesses will have to be recalled. Senior counsel assisting conceded so much at RCTr 505. The Commissioner has not said that this will not be permitted. He has said that a request for a witness to be recalled will not necessarily be granted: RCTr 1909, see also 2665-2666. That is a perfectly reasonable position to take, particularly bearing in mind the fact that this is not a proceeding inter partes, but an inquisition in which the witnesses are the witnesses of the Commission.

1092. There is another reason why the complaint raised by Particular 1.2(h) must fail. It is, I consider, premature. It is not yet known what requests will be made for witnesses to be recalled; and on what ground or grounds - that is, by reason of emerging documentation, or having regard to the Commissioner's preliminary ruling as to the meaning of "improper conduct". The Commissioner's response to concrete situations is unknown.

1097. According to Particular 1.1(a) apprehension of bias reasonably arises from the Commissioner's

"failure to examine the accuracy or reliability of the information on which the Auditor General's report ... was based, in particular, on information from Mr Morris, Mr Fodero and Mr Langridge."

1101. No such apprehension could reasonably arise. It is true that the preamble to the terms of reference identifies the report, in particular its expression of concern "about the probity of contractual and outsourcing arrangements at the ... Service during the period" when the plaintiff was chief executive officer. It is also true that conclusions expressed in the report are the obvious source of a number of the terms of reference (if any confirmation was needed, see Exhibit J). I am also prepared to accept the plaintiff's evidence that, as he perceives it, the report is a scandalous and appalling document, expressing conclusions reached upon a less than thorough investigation.

1104. Those things said, the Commission is not a Commission to inquire into the Auditor General's report. It is a Commission to inquire into particular transactions which are identified in his report. It is for the Commissioner to inquire into and report upon those transactions, and to do so upon material adduced before him. He already has called or no doubt intends to call before him persons who provided information which was relied upon by the Auditor General. In the end, the evidence of those persons will be assessed by him as relevant or irrelevant, reliable or unreliable. In the Commissioner fulfilling his function, conclusions reached by the Auditor General will be neither here nor there. The fact that, depending upon the Commissioner's conclusions, conclusions reached by the Auditor General will be either supported or impugned will be a by-product, no more, of the Commissioner's conclusions. That is the way in which the hypothetical observer would perceive the situation.

1107. Counsel for the defendant developed an argument that the plaintiff had not, in any event, made out a fundamental premise on which Particular 1.1(a) was said to rest: that is, that the Auditor General's report was based, in particular, on information provided by Messrs Morris, Fodero and Langridge. I do not agree that the Particular does rest upon that premise. I conclude, having read the report, the later Operation Caledon report, the evidence of Messrs Morris, Fodero and Langridge before the Commission, and also having regard to Mr Morris ' evidence before me, that each of the three men provided material to the Auditor General; and that such material at least contributed to some of the conclusions which he reached. Those conclusions do not advance the plaintiff's case.

The conduct of the Commissioner and Counsel Assisting vis-à-vis plaintiff's counsel: paras 1.1(p) and (t) of the Particulars

1112. It was contended for the plaintiff that the Commissioner, and counsel assisting with the Commissioner's evident acquiescence, had treated counsel for the plaintiff in such a way as to indicate animus against the plaintiff (see eg, Outline of Plaintiff's Case, para 16); and that the pattern of conduct established before the Commission had continued in the proceeding before me.

1115. I do not consider that the complaint was made out. Proceedings in the Commission and before me were not at all times free of tension. Senior counsel for the plaintiff could not be said to have been a shrinking violet in either setting. Many would think that, in pursuing his client's interests, he gave as good as he got. Generally speaking, I do not regard any remarks highlighted by the plaintiff's side to go beyond what could be expected in all the circumstances; though in expressing that conclusion I do not say, and it is not the case, that junior counsel for the plaintiff was always treated kindly by counsel assisting.

1118. Nor, again, do I consider that anything favourable to the plaintiff is to be discerned from the alleged failure to acknowledge the role of plaintiff's counsel which are referred to in para. 1.1(t) of the Particulars; or from the unilateral revision of transcript there identified. The revisions, I add, were made on 13 April; and counsel for the plaintiff ultimately did not rely on one of the two of them.

The return of the Firman summons: paragraph 1.1(k) of the Particulars

1123. The plaintiff was served with a summons to produce documents. It was returnable on 3 February 2000.

1126. Many of the plaintiff's documents had been seized by the police in October 1997.

1129. The plaintiff recovered those documents a day or so before 3 February this year.

1132. The plaintiff's solicitor, Mr McCabe, understood, from speaking to some employee of the Commission, that it was to receive from the police a copy of those documents.

1135. On 3 February the plaintiff and Mr McCabe attended at the Commission hearing. They had with them the documents returned by the police.

1138. On that day there was apparently some discussion between senior counsel assisting and Mr McCabe concerning the ambit of the summons. The matter was briefly mentioned before the Commissioner, and the return of the summons was adjourned to 10 February 2000.

1141. In the course of that brief mention Mr McCabe told the court that the majority of the documents sought were documents that had been provided to the police, that he had been informed that they had been provided to the Commission, and that he sought an opportunity to inspect what had been provided so that, inter alia, irrelevant documents could be identified. He did not mention the fact that he and the plaintiff had brought the returned documents to the Commission that day.

1144. In the event, the summons was not answered and the documents were taken back to Mr McCabe's office.

1147. Later that day, it seems, the Commission learned that the documents had been returned to the plaintiff by the police.

1150. The plaintiff was forthwith required to attend the Commission the next day. He and his solicitor did so. The plaintiff was examined to suggest that he had concealed documents from the Commission. The examination was robust. The plaintiff denied any such concealment. He explained the situation from his standpoint. Mr McCabe explained that it had all been a misunderstanding, and apologised to the Commission - but, he said in evidence before me, in substance to his client - for having created that misunderstanding.

1153. The explanation was accepted, without hesitation, by the Commissioner.

1156. Mr McCabe gave evidence that, at the time, he attached no significance to the matter. In light of the terms of reference, he accepted that the Commission could be expected to be sensitive to the possibility that documents had been concealed. It was only after he saw a certain pattern emerging in the conduct of the Commission that he came to attach particular significance to what had occurred on 4 February.

1159. I do not consider that the hypothetical observer would or might reasonably apprehend from what occurred on 4 February 2000 any appearance of bias against the plaintiff. What the plaintiff's solicitor said on 3 February was really the source of the problem; and the response of counsel assisting on 4 February could scarcely have been otherwise. I do not accept, I add, the suggestion that on 4 February the matter should have been settled between counsel assisting and the plaintiff's solicitor; and that failure to dispose of it that way might reasonably lead to an apprehension of bias on the part of the Commission adverse to the plaintiff.

1164. On the plaintiff's notice of motion there must be judgment for the defendants. The second defendant's summons should be dismissed. The likely fate of that summons, had it been discretely argued, is disclosed by the entirety of my Reasons.