FEDERAL COURT OF AUSTRALIA

PRACTICE & PROCEDURE - application for judicial review on grounds of Wednesbury unreasonableness - whether discovery should be given of all material before the decision-maker or whether it should be limited to such material as the decision-maker had considered to be relevant - whether discovery should be ordered at all where judicial review not authorised under Administrative Decisions (Judicial Review)Act  1977 (Cth).

Foreign Acquisitions and Takeovers Act 1975 (Cth), s 18

Broadcasting Services Act 1992 (Cth), ss 57, 70, Part 5

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 13

Judiciary Act 1903 (Cth) s 39B

Public Service Board of New South Wales v Osmond (1985-6) 159 CLR 656, applied

TNT Australia Pty Ltd v Fells (1992) ATPR 41-190, applied

Australian Securities Commission v Somerville (1994) 51 FCR 38, applied

R v Secretary of State for the Home Department; Ex parte Herbage (No 2) [1987] QB 1077, considered

WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175, considered

Lloyd v Costigan (1983) 82 FLR 104, applied

Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223, distinguished

Minister of Immigration and Ethnic Affairs v Wu Shan Liang (1966) 185 CLR 259, applied

Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542, distinguished

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, distinguished

CANWEST GLOBAL COMMUNICATIONS CORP v AUSTRALIAN BROADCASTING AUTHORITY (NG 322 of 1997)

CANWEST GLOBAL COMMUNICATIONS CORP & ORS v TREASURER OF THE COMMONWEALTH OF AUSTRALIA (NG 375 of 1997)

CANWEST GLOBAL COMMUNICATIONS CORP v AUSTRALIAN BROADCASTING AUTHORITY (NG 384 of 1997)

DONHOLKEN PTY LTD v AUSTRALIAN BROADCASTING AUTHORITY (VG 183 of 1997)

SELLI PTY LTD v AUSTRALIAN BROADCASTING AUTHORITY (VG 185 of 1997)

DONHOLKEN PTY LTD v PETER HOWARD COSTELLO (VG 214 of 1997)

SELLI PTY LTD, TURNAND PTY LTD, NUMERATION PTY LTD v PETER HOWARD COSTELLO (VG 218 of 1997)

HILL J

SYDNEY

16 JUNE 1997

NG 322 OF 1997

NG 375 OF 1997

NG 384 OF 1997

VG 183 OF 1997

VG 185 OF 1997

VG 214 OF 1997

VG 218 OF 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.         The respondents in each proceedings to give discovery to the applicants of all documents that were before the respondents, as the case may be, at the time of the decisions referred to in the applications.

2.         Such discovery to take place before 30 June 1997.

3.         Inspection is to take place in the week commencing 1 July 1997, subject to any undertakings as to confidentiality as may be required.

Note:               Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

NG 322 OF 1997

NG 375 OF 1997

NG 384 OF 1997

VG 183 OF 1997

VG 185 OF 1997

VG 214 OF 1997

VG 218 OF 1997

REASONS FOR JUDGMENT

There are presently before the Court seven applications.  Three are applications brought by Canwest Global Communications Corp (“Canwest”), two are applications brought by Donholken Pty Ltd (“Donholken”) and two are applications brought by Selli Pty Ltd (“Selli”).  One of the applications brought by Canwest was commenced in the High Court and thereafter remitted to this Court.  All of the remaining applications have commenced in this Court.

The applications can be divided into two sets.  In one set of applications the Australian Broadcasting Authority (“the Authority”) is the respondent.  In the other, the respondent is named as Peter Howard Costello.  Correctly, those applications should have named the “Treasurer of the Commonwealth” as the respondent rather than the present incumbent of that office.  Steps should be taken to amend the proceedings accordingly.

The proceedings against the Authority seek to challenge decisions said to have been made by the Authority on or about 3 April 1997.  The proceedings against the Treasurer challenge decisions said to have been made by him on or about 2 May 1997 under s 18 of the Foreign Acquisitions and Takeovers Act 1975 (Cth) (“the Takeovers Act”).

The background to the dispute between the parties can be shortly stated as it emerges from the pleadings and affidavits as filed.

It is alleged that the Authority conducted an investigation into whether the provisions of Part 5 of the Broadcasting Services Act 1992 (Cth) (“the Act”) were being complied with in relation to five commercial television broadcasting licences, being licences for Sydney, Melbourne, Brisbane, Adelaide and Perth.  Compendiously these licences are here referred to as “the ten licences”.  On concluding its investigations in April 1997, the Authority published a lengthy report setting out its findings, namely that it was satisfied that, contrary to subs 57(1) of the Act, Canwest was in a position to exercise control of the ten licences and that, contrary to subs 57(3) of the Act, Canwest, together with other foreign persons, had company interests in the ten licences which exceed 20 per cent.

On 3 April 1997 it is alleged that the Authority issued to Canwest two notices, pursuant to s 70 of the Act, requiring Canwest to take action within six months of the date of the notices to remedy the alleged breaches of the Act.

Selli claims to be affected by these decisions and accordingly to challenge them because the report included findings that it participated in transactions which constituted a contravention of the Act.  In respect of Selli, the findings the subject of challenge include findings that the directors of Selli were effectively the nominee or representative directors of Canwest or Drie Sterren Kapitaal (Nederland) BV (“Drie Sterren”) on the board of directors of Ten Group Limited and in essence would act in accordance with the wishes and instructions of Canwest.  Donholken claims to be aggrieved and to have standing to review the same decisions because, it is said, findings adverse to it were made in the same report essentially concerning the relationship between Canwest and it.  It is also alleged that the financial and commercial interests of Donholken are affected in that that company might be forced to sell the shares it holds in Ten Group Limited, the company which controls the ten licences.

The cases against the Treasurer seek to challenge decisions made by the Treasurer that the acquisition of shares in the Ten Group Limited by Selli, Turnand Pty Ltd (“Turnand”), Numeration Pty Ltd (“Numeration”) and Dolholken during the period 8 November 1996 to 10 January 1997 inclusive required prior approval under the government’s foreign investment policy, that the increase in economic interest of Canwest in Ten Group Limited from 57.5 percent to 76 percent was contrary to the requirements of that policy, and accordingly that under subs 18(4) of the Takeovers Act each of Selli, Turnand, Numeration and Dolholken was a “foreign person” for the purposes of that Act, that the Treasurer was satisfied that the acquisitions in Ten Group Limited resulted in that company being controlled by foreign persons, that that result was contrary to the national interest, and that accordingly each of Selli, Turnand, Numeration and Dolholken be ordered to dispose of their respective shares in Ten Group Limited acquired as part of the acquisitions referred to above by 30 September 1997 to a person or persons approved in writing by the Treasurer.

The challenges brought against the Authority (except that which commenced in the High Court) rely upon the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).  The reasoning process of the Authority is set out in its lengthy report.  The Authority has, on appropriate undertakings as to confidentiality, where requested, made available to the relevant applicants the material which, it says, it took into account in arriving at the decisions under challenge.  The proceedings against the Treasurer are in a different category.  The provisions of the ADJR Act do not apply to them.  In consequence, jurisdiction is claimed relying upon s 39B of the Judiciary Act (1903) (Cth), the Treasurer being an officer of the Commonwealth.  Hence, reasons for the decision could not be obtained under s 13 of the ADJR Act and, in accordance with the current state of authority, the Court has no jurisdiction to order the Treasurer to give reasons for the decisions he has reached: Public Service Board of New South Wales v Osmond (1985-6) 159 CLR 656.

I should add that there are challenges to the jurisdiction of the Court which will be determined when the proceedings finally are before the Court for hearing.

A cursory perusal of the Authority’s report shows that the conclusions which the Authority reached depended upon the relationship between the Ten Group Limited, those companies which held or acquired shares in that company and a financier, Drie Sterren, a Netherlands Antilles company being a subsidiary of Canwest Global Communications Corp.  Relevant were a series of debenture and option deeds.  Actual exercise of power was a matter relevant to the decision as well as legal ability to exercise power.

Each of the applicants now seek discovery of all documents before the relevant decision-maker (the Authority or the Treasurer as the case may be) at the time the decisions were made.  To this request the respondents reply, in the Authority matter, that they have supplied all documents which the Authority took into account when making the decision.  No documents at all have been supplied in the proceedings to which the Treasurer is a party.  The respondents rely upon an affidavit of a Mr Corker who is the principal legal officer of the Authority.  He refers to various documents and then deposes that, to the best of his knowledge, information and belief, there are no other documents in the possession of the Authority directly relevant to the issues between the parties to these proceedings.  Perhaps, ironically, two paragraphs later he somewhat weakens the strength of that testimony by referring to some documents which had come to notice which had not been in an original confidential exhibit which he had said to be complete.  Be that as it may, there is an arrogance, which is somewhat breathtaking, that a public servant should seek to substitute his opinion as to what is relevant to the issues between the parties for the opinion of the Court.

As a matter of convenience I shall consider the question of discovery by reference first to the application brought by Canwest against the Authority, relying, as it does, upon the ADJR Act.  I shall deal later with the other applications, to the extent that they differ.

The Court’s power to grant discovery now rests upon O 15 of the Federal Court Rules.  Rule 15 of that Order provides:

“The Court shall not make an order under this order for the filing or service of any list of documents or affidavit or other document or for the production of any document unless satisfied that the order is necessary at the time when the order is made.”

The criterion for determining whether an order for discovery should be made is the requirement of “necessity”.  The significance of the test of necessity is dealt with in the useful judgment of Lindgren J in Trade Practices Commission v CC (NSW) Pty Ltd (1995) 58 FCR 426 where the authorities are extensively considered.  As his Honour points out, discovery is limited to documents which relate to “any matter in question ...” in the proceedings.  To determine, therefore, whether discovery is necessary, it will be appropriate to consider the pleadings to determine what is in issue between the parties.  A party will be required ultimately to produce documents in circumstances where the documents lead to a train of inquiry which may advance the case of one party or damage that of his adversary: Commonwealth v Northern Land Council (1993) 176 CLR 604 at 632.

Lindgren J, in the case cited, concludes that “necessary” refers to “necessary in the interests of a fair trial”, that is to say, necessary for the disposing fairly of the case.  If one party but not the other had documents relating to the matter in question it will prima facie be necessary for discovery to be ordered.  But as his Honour points out, that is subject to the well-established exception that discovery should not be ordered to enable a mere “fishing expedition”.  It is that exception upon which the respondents seek to rely in the present case.  However, the respondents also submit that, in the present case, discovery is not relevant to any issue.

It appears early to have been the view that discovery could not be ordered in support of prerogative writs for it was available only in aid of civil rights: see per Beaumont J in Swiss Aluminium Australia Limited v Federal Commissioner of Taxation (1987) 87 ATC 4299.  However, it is now quite clear that discovery may be given in proceedings for administrative review: Nestlé Australia Limited v Deputy Federal Commissioner of Taxation (1986) 10 FCR 78, TNT Australia Pty Ltd v Fells (1992) ATPR 41-190 per Gummow J and Australian Securities Commission v Somerville (1994) 51 FCR 38.  It might be noted that, while most of the Australian cases have considered the availability of discovery in the context of applications made under the ADJR Act, the Court of Appeal in the United Kingdom had no difficulty in R v Secretary of State for the Home Department; Ex parte Herbage (No 2) [1987] QB 1077 in determining that in an appropriate case discovery could be granted in administrative review proceedings at common law.  In that case, May LJ, with whose reasons the other members of the Court agreed on this matter, said (at 1089):

“In the majority of applications for judicial review the underlying facts are agreed, or appear in documentary form, and the issues for the court are largely, if not entirely, questions of law.  However, although the court’s function is supervisory, it may well involve some investigation of the facts of a case ...  It should not be often that this power need be exercised, but in the instant case I agree with the judge that if the merits of the judicial review proceedings and allegations were to be gone into, then clearly the discovery ordered would be necessary and proper.”

No suggestion appears in the judgment of May LJ that some more restrictive test should apply in administrative review proceedings than would apply in any other proceedings in the Court.  This caused Gummow J to note in TNT Australia v Fells (supra) that the Court of Appeal in England had applied a test somewhat more favourable than perhaps had been applied in Australia.  In that context his Honour was referring to comments made by Brennan J in WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 to which reference must now be made.

In the WA Pines case, Toohey J at first instance had refused an order for discovery in proceedings seeking a declaration that a notice issued by the Chairman of theTrades Practices Commission, pursuant to s 155 of the Trade Practices Act 1974 (Cth), was void.  His Honour did so because he said there was an absence of a disclosed factual foundation for the allegation that the Chairman of the Trade Practices Commission did not have reason to believe any of the matters set out in s 155 when he issued the notice in question.  Hence, discovery he thought was not necessary to fairly dispose of the matter in issue but, rather, the application for discovery brought in an attempt to make out a case.  The Full Federal Court dismissed the appeal.  Brennan J, with whom Bowen CJ agreed, said (at 181-182):

“The modern authorities are uniform in favour of judicial review of powers which are conditioned upon the existence of reasons for a specified belief ... But such a challenge requires the applicant to show that the Chairman has no reason to believe that the person to whom the notice is given is capable of furnishing information, producing documents or giving evidence relating to the investigation which the Commission has in hand, being an investigation of a contravention or what reasonably can be suspected to be or to be about to be a contravention.

To make the challenge good, the appellant sought discovery but it was refused.  On appeal, it was argued that the respondent as a party to the proceedings may be required under O 15, r 1 to give discovery ‘unless the Court otherwise orders’, and that there was no reason for denying to the appellant the benefit of the discovery to which it is thus prima facie entitled.  In proceedings for judicial review of administrative action, O 15 appears to go further than O 53, r 8 of the English rules recently introduced in order to overcome the long practice of generally denying discovery in applications for prerogative writs, a practice to which the Law Commission (‘Report on Remedies in Administrative Law’ 1976, Cmnd 6407, par 15) had drawn attention.

Though the power to require discovery be acknowleged, how should it be exercised?  It depends upon the nature of the case and the stage of the proceedings at which the discovery is sought.  In the present case, discovery is sought before there is a tittle of evidence to suggest that the Chairman did not have the requisite cause to believe which par 6 of the statement of claim would put in issue.  Some assistance was sought to be derived from cases where discovery had been given to a party before he was required to give particulars of his claim: cases such as Ross v Blakes Motors Ltd [1951] 2 All ER 689, but in cases of that kind there is either an anterior relationship between the parties which entitles one to obtain information from the other, or sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery.  This is not such a case.  This is a case where a bare allegation is made by par 6 of the statement of claim and, the paragraph being denied, the applicant seeks to interrogate the Chairman and ransack his documents in the hope of making a case.  That is mere fishing.  As Smithers J said in Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1979) 36 FLR 450 at 460: ‘In the absence of such evidence the proceeding is essentially speculative in nature.  In such circumstances for the court to assist the applicants by making availalbe to them the proceddes of interrogatories and discovery would be to assist them in an essentially fishing exercise and rom this the court on established principles should refrain.’  His Honour’s refusal of discovery was right and it ought not to be disturbed.”

Lockhart J was of a similar view.

Although nothing turns upon it, WA Pines was a case depending upon the general law rather than one brought pursuant to the provisions of the ADJR Act.  The relevance of that Act is that s 13 requires reasons to be given by a decision-maker where requested.  Thus, the provision of reasons may well narrow the circumstances where discovery will be appropriate: Lloyd v Costigan (1983) 82 FLR 104 at 114.

The power of the Court to order discovery in judicial review cases, particular those brought under the ADJR Act, was considered by a Full Court of this Court, differently constituted, in Australian Securities Commission v Somerville (supra).  In that case the Court (comprising Black CJ, Ryan and Olney JJ) referred to WA Pines and, inter alia, the judgment of Beaumont J in Ex parte Swiss Aluminium Australia Ltd (1982) 72 ALR 247 and concluded that there was no justification for the view that discovery in judicial review proceedings should be treated otherwise than according to the ordinary principles applicable in civil proceedings.  Their Honours recognised that, having regard to s 13 of the ADJR Act, the occasion for making an order for discovery will not necessarily arise where the Court has all the material necessary to exercise its jurisdiction.

One of the arguments put to the Court in Somerville was that it was incumbent upon an applicant for discovery to establish, usually by way of evidence, a basis upon which the Court should conclude that there was an issue to be tried, proof of which would be aided by discovery.  This argument was rejected.  Certainly there is no such requirement in the general law where discovery is sought in ordinary civil cases.  Their Honours said (at 54-55):

“... the authorities do not support the wide general proposition advanced by the appellant.  Whether it is appropriate to order discovery will depend upon the nature of the case and the stage of the proceedings at which discovery is sought: WA Pines per Brennan J at 181.  The two cases relied upon by the appellant, Melbourne Home of Ford v Trade Practices Commission (1979) 36 FLR 450 and WA Pines, must be viewed in the light of their own facts.  WA Pines has already been noted.  Melbourne Home of Ford also involved an attack on notices issued pursuant to s 155 of the Trade Practices Act, it being alleged that the Chairman of the Trade Practices Commission did not have the requisite reason to believe that the applicants were capable of furnishing information or producing documents relating to a matter that constituted or may have constituted a contravention of the Act and that accordingly the precondition for the exercise of the power had not been satisfied.  The applicants were however faced with the prima facie validity of the notices and there was not the slightest evidence to suggest that the Chairman did not have the requisite reason to believe.  The bare allegations in the statement of claim were denied.  It was in those circumstances that the Court in each case considered that, in the absence of such evidence, the proceeding was essentially speculative in nature and that to order discovery would be to assist the applicants in a fishing exercise: see Melbourne Home of Ford at 460; WA Pines at 182-182; 190-191.  In any event, it is clear from the passage of his judgment of WA Pines set out earlier in these reasons, that Brennan J contemplated that there might be cases in which discovery could properly be ordered even before particulars of a claim had been given, where sufficient had been shown `to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery’ (at 181)”

Their Honours made it clear that the pleadings in that case indicated that several questions of fact were seriously in issue.  So, the matter was one where it was open to the judge at first instance to make an order for discovery and the Court refused to interfere with that order.

It is necessary now to turn to the pleadings filed in the present applications to consider whether, in the relevant sense to which reference has already been made, discovery is “necessary”.  For convenience, I will deal initially with the application sought to be brought by Canwest against the Authority relying on the ADJR Act.

The application for review covers many grounds.  It is unnecessary to detail all of them.  In respect of most of the grounds no question of discovery could possibly arise.  For example, it is said that the notices given were not authorised by the Act or, if they were, that the Authority had misapplied various sections of the Act or made other errors which were errors of law.

However, one of the grounds of review (once amendment to the grounds is made as has been requested and which amendment I would allow) is that the Authority’s decision was unreasonable and incapable of being supported by any material which was before the Authority.  The ground as formulated is in essence a ground of Wednesbury unreasonableness: cf Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.  I do not pause here to consider the difficult question of the role which Wednesbury unreasonableness plays, having regard to the statutory grounds of review in the ADJR Act.  On the one hand there is a clear tension between an unreasonableness ground and the principle that the courts should not intrude into the merits of administrative decisions: Minister of Immigration and Ethnic Affairs v Wu Shan Liang (1966) 185 CLR 259.  So, the ground of Wednesbury unreasonableness may, of necessity, need to be confined.  Nevertheless, there have been a number of cases, both in the High Court and in this Court, where a review of administrative decisions has been undertaken on the grounds of unreasonableness: cf Luu v Renvier (1989) 91 ALR 39, Fares Rural Meat and Live-stock Co Pty Ltd v Australian Meat and Livestock Corporation (1990) 96 ALR 153 and the cases there cited, including Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and see Tickner v Bropho (1993) 40 FCR 183.

Where the issue is whether a decision reached by an administrative decision-maker is so unreasonable or irrational that no reasonable (or rational) decision-maker could possibly arrive at it, regard must be had to the material which was actually before the decision-maker.  I use the word “actually” without intending to exclude from consideration material which was constructively before the decision-maker in that it was held by the decision-maker or the government department, although not in fact taken into account: cf Minister for Aboriginal Affairs v Peko Wallsend Ltd (1985-6) 162 CLR 24 at 45 and Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 at 567.

Since the ground can only be made out by having regard to the totality of the evidence before the decision-maker, in the sense which I have used that expression, it must follow axiomatically that the material before the decision-maker must be available to the Court.  If the material is not put before the Court, the applicant might demonstrate unreasonableness by reference to such material as is before the Court but be met by an argument that, since there was other material “before” the decision-maker, the applicant has not made good his case since the material not before the court might demonstrate reasonableness.

It is, as I have already suggested, not satisfactory for a public servant to say that in his view there is no relevant material other than that which he has selected from the material which was before the decision-maker.  He may very well be right, but at the end of the day his process of selection is irrelevant.  Accordingly, it must follow that it is necessary for the administration of justice and for the disposing fairly of a Wednesbury ground of review, that all material before the decision-maker be before the Court.  I note an argument that in some cases a Wednesbury argument is sought to be made in respect of particular findings which may be findings of fact on the way to the decision: cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 359-360.  However, the point still holds good, to the extent that the Court has jurisdiction (a matter yet to be decided), that the material before the decision-maker must be available to the Court to enable the Court to decide the matter.

I turn now to deal with the so-called exception encompassed by the words “fishing expedition”.

For my part I think it is unfortunate that over the years the colourful words “fishing expedition” have been used in the present context.  In one sense, every application for discovery will involve some element of “fishing”.  A party seeking discovery will often, perhaps usually, not know what material is in the possession or power of the other party which may advance or tend to advance the case of the person seeking discovery or denigrate from the case of his or her opponent.  Anecdotally, a good example of what some may call “fishing” may be found in the case of Ampol Petroleum Ltd v RW Miller (Holdings) Ltd [1972] 2 NSWLR 850, subsequently appealed to the Privy Council.  In that case the conclusion that an allotment of shares in RW Miller Ltd was invalid, stemmed, at least in part, from evidence which came into the possession of the plaintiffs only as a result of discovery and was unknown to the plaintiff before discovery.  This, as indicated above, is not unusual.  It will often be the case that a party asserting wrong-doing on the part of another will, through the discovery process, obtain evidence to support its case.  No-one, however, would suggest that this involves an illegitimate “fishing expedition”, notwithstanding that knowledge of the existence of the material did not exist before discovery.

It seems that the distinction that is being drawn in the cases (and it is a distinction discussed by Lindgren J in CC (NSW) Pty Ltd) is between the use of discovery for the purpose of determining whether a case exists as distinct from the use of discovery to compel the production of documents for use in the case.  It is obvious that the distinction is not an easy one.  While the judgment of Brennan J in WA Pines can be read as requiring that there must be at least sufficient to show a suspicion that the party seeking discovery has a good case, proof of which is likely to be aided by discovery before discovery will be granted, it is clear from Somerville that evidence will not be required in each case.

I do not attempt exhaustively to distinguish WA Pines from Somerville, save to say that the factual context in each was different.  However, there is a real distinction between that which is a mere assertion and the sort of case where the pleadings put at issue factual matters.  Somerville was the latter case.  The present in one sense is neither.  The present is not a case of mere assertion despite a submission to the contrary on the part of the respondents.  It is a case where the Court is being asked to exercise its supervisory jurisdiction of administrative decision-making by reference to the material which was before the decision-maker and in circumstances where the allegation is made that the totality of this material (in the possession of only one party) supports the view of unreasonableness or irrationality.  It seems to me that that is a quite different case from that involved in WA Pines.  To the extent that it is necessary that something more than an allegation be required even where Wednesbury unreasonableness is alleged, I think that the present case rests in more than assertion.  The considerable material filed, which includes the Authority’s report, leaves room for an unreasonableness argument.  Be that as it may, where the manner in which the decision-maker has acted is at issue and the issue is required to be determined by reference to materials before the decision-maker, supervisory review can not be exercised without regard to the relevant material.  It may support the applicant.  It may support the respondent.  But on the face of the pleadings and the report of the Authority, I think that there is sufficient material before me to show that what is involved is not as it were an attempt to determine whether there is a case to be made out under some head of judicial review, but rather there is the need here to have evidence to show whether the case that has been sought to be made out in fact is made out.

Accordingly, I am of the view that in the relevant sense discovery is necessary and that the case is not one falling within the exception of “fishing”.  I should say that there is much to be said for the view, although it is not one that I have acted upon in the present case, that where Wednesbury unreasonableness is raised, it will always be appropriate for the material before the decision-maker to be placed before the Court without the need for the Court to go into a question of whether there is some form of prima facie case made out.

It is obvious from what I have already said that there is no distinction to be drawn between cases falling under the ADJR Act on the one hand, where reasons may be sought, and cases brought at common law on the other.  Each case will depend upon a determination of the question whether discovery is necessary.  Although depending upon the ground of review, s 13 of the ADJR Act may render the occasions where discovery will be necessary less numerous than otherwise would be the case, if anything the presence of the remedy in s 13 reinforces the necessity of discovery in cases to which s 13 has no application.

As each of the cases against the Authority, whether brought under the provisions of the ADJR Act or otherwise, seeks inter alia judicial review on the grounds of Wednesbury unreasonableness, I would order discovery in each such case.

The proceedings against the Treasurer do not fall within the ADJR Act, as I have already indicated.  The submission has been made that I should deduce from the exclusion of the decisions of the Treasurer under the Takeovers Act from review under the ADJR Act that neither reasons nor other assistance should be given to an applicant seeking review under s 39B of the Judiciary Act.  With respect, there is no such principle.  The ADJR Act was designed to provide a simplified means of procedure for judicial review of administrative decisions and, to the extent to which it operates, to provide to applicants seeking judicial review reasons where s 13 is made applicable.  But, while the legislature saw fit to exclude certain kinds of administrative decisions from the purview of the ADJR Act, it does not follow that discovery should not be granted in such cases.  The matter is left to the general law.

Section 39B of the Judiciary Act authorises the Court where the conduct of an officer of the Commonwealth is under consideration and the section otherwise applies to review an administrative decision.  It is true, as I have already said, that the Court will not order reasons for decision.  But that does not mean that the ordinary processes of the Court for discovery, or for that matter interrogatories, will not be available in an appropriate case.  The question will always be whether the case is an appropriate one.  For example, it has for some time been the case, and still is the case, that discovery or interrogatories could be sought to alter reasons for discretionary decisions under the Income Tax Assessment Act (1936 (Cth): cf Krew v Federal Commissioner of Taxation (1971) 71 ATC 4091, Brian Hatch Timber Co (Sales) Pty Ltd v Federal Commissioner of Taxation (1971) 71 ATC 4093, Nestlé Australia Ltd v Deputy Federal Commissioner of Taxation (1986) 10 FCR 78 and Western Australia Capital Investment Co Ltd v Federal Commissioner of Taxation (1988) 88 ATC 4562.  Such cases involving income tax assessments are excluded from judicial review under the ADJR Act.  But that has never been thought to operate to exclude the potentiality of interrogatories or of discovery.  So, too, here.  In my view, the issue is solely whether discovery is necessary, subject to the exclusion of those cases where the applicant for discovery seeks to find a case rather than to support a case.

Again, the applicants seek judicial review, inter alia, on the grounds of Wednesbury unreasonableness.  In my view, there is no distinction to be drawn between these cases against the Treasurer on the one hand and those against the Authority on the other, merely because the provisions of the ADJR Act do not apply.

For the reasons therefore I have given I am of the view that discovery should be ordered.  As in each case the applicants sought to amend their grounds of review in the course of argument so as to make it clear that review was sought on the basis of Wednesbury unreasonableness, but only after the motion for discovery came on for hearing.  I am of the view that the case is one where no order as to costs should be made.

I will accordingly make orders for discovery and inspection in accordance with a timetable which will be discussed with counsel.

I certify that this and the

preceding ten (10) pages

are a true copy of the Reasons

for Judgment herein of the Honourable

Justice Hill

Associate:

Dated:              16 June 1997