Issue of fair procedures in tribunal of enquiry was moot following publication of report

Denham CJ (majority decision): Judicial review - orders concerning the cross-examination of a witness - refusal of relief by High Court in 2011 - applicant not permitted to cross-examine witness before tribunal of enquiry - whether refusal amounted to failure to observe fair procedures - witness was consultant advising government department on grant of mobile phone licence - whether appeal moot - whether as matter of discretion the appeal should be heard - initial refusal of witness to give evidence - agreement to give evidence once he had received an indemnity from the applicant - right to curtail the cross-examination of a witness - procedure when witness is not an "accuser" - proportionality - evidence favourable to the party seeking to cross-examine - purpose of cross-examination: 1. to elicit favourable evidence; 2. to cast doubt on the veracity of the evidence - grounds available to High Court to reach conclusion - case management by tribunal.

"I would affirm the finding of the learned trial judge that Professor Andersen had given evidence that in his opinion the respondent’s lawyers were biased, and that he had explained in detail what he meant, that the most that could have been hoped for was that he could repeat himself, and, perhaps, gild the lily."

O'Malley J (partially dissenting): Whether appeal moot - whether substance of appeal should be considered by court - right of tribunal to control even the cross-examination of accusers - order refused in 2011 - report published in same year - mootness - whether live or real or concrete dispute between the parties - whether doctrine of mootness could be relaxed.

"Instead, the appellant at this stage is seeking what amount to free-standing declarations that in the course of its hearings the tribunal subjected him to unfair procedures in making the two impugned rulings. Such declarations would, he says, be available to be used by him to “protect his reputation”. In this context, since the rulings themselves could not be seen as causing reputational damage, that could, it seems to me, mean only that declarations from this Court would be used by him to undermine the status of the report in the absence of any challenge to it."

"My own view would be that the Court should not exercise its discretion to consider the merits of the appeal in circumstances where the impugned rulings were not capable, in themselves, of inflicting any reputational damage; where the appellant has not demonstrated that they led to any such damage and where any remedy that might be granted by this Court would be unrelated to the findings of the tribunal. However, in view of the fact that the majority of the court feels that it is appropriate to examine the substance of the case, I would also agree that in any event neither of the rulings in issue breached the appellant’s right to fair procedures, and that the analysis of Hedigan J. in this regard was correct."

McKechnie J (partially dissenting): Mootness - whether exceptional jurisdiction to consider moot issue should be invoked - whether to consider substantive appeal.

"In the absence of any challenge to the report, an obvious but important question immediately arises, which is what legal value would such a declaration now have for the appellant? How and in what way could it be legally used, particularly against the background of the proceedings which have as their essence an attempt to prohibit the publication of the report until the unfairness alleged has been remedied, or, in other words, until the rulings were stood down? The report has now been published without this happening. It is tremendously difficult to see how Mr. O’Brien could challenge it domestically at this point in time; even if that somehow came about, it would have to be in a different set of proceedings. So what utility, in a legal context, could such a declaration have? It seems to me that the answer is none."