FEDERAL COURT OF AUSTRALIA

Mentink v Minister for Justice [2015] FCA 1094

THE COURT ORDERS THAT:

1.    Application dismissed.

2.    The applicant pay the respondent’s costs to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    This is an application by Mr Mentink for discovery orders in his judicial review application. Mr Mentink’s judicial review application was brought in October 2014. He seeks judicial review of a decision by the Minister of Justice on 30 September 2014. The Minister’s decision was to take no further action in relation to corruption issues raised by Mr Mentink. The Minister’s decision was taken under s 156(2)(c) of the Law Enforcement Integrity Commissioner Act 2006 (Cth) (LEIC Act). The Minister had a limited set of documents before him when he made his decision.

2    The corruption alleged by Mr Mentink concerned alleged conduct by the Australian Federal Police (the AFP) since 2003. It included allegations of theft of his yacht, Larus II, in August 2004. Mr Mentink also made allegations of misconduct within the Professional Standards Unit of the Australian Federal Police, an alleged conflict of interest and a deficient investigation by the Australian Commission for Law Enforcement Integrity (ACLEI) under the LEIC Act.

3    Much of Mr Mentink’s lengthy affidavit evidence, and much of his oral submissions this morning, were directed at the lengthy background and history to his allegations. These issues are undoubtedly important to Mr Mentink. He said that he wants the court to appreciate that these are not empty allegations. On occasion, he described the substantive proceedings as an “appeal” from the Minister’s decision. He also said that the evidence he has now collected should “move a discovery order”.

4    These submissions misapprehend the nature of the substantive proceedings which are proceedings in the nature of review of a discretionary decision by a Minister based on material that was before him. The submissions also misapprehend a central issue in this discovery application which is the relevance of the seven categories of document that Mr Mentink seeks to his substantive application for review of the Minister’s decision. Mr Mentink accepted this morning that none of the documents about which he seeks discovery orders were before the Minister.

5    The documents sought by Mr Mentink are not directly relevant to the review proceedings. The making of an order for discovery would directly affect third parties (the AFP and ACLEI) who have not had the opportunity to make submissions. Discovery would not facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible.

6    Mr Mentink’s application must be dismissed.

The issues in the primary review proceeding

7    The background to the review proceedings can be summarised briefly.

8    In Mr Mentink’s affidavit evidence he describes how, on 12 May 2012, by a letter to the Minister of Justice, he referred information to the Minister for Justice under s 154 of the LEIC Act.

9    The objects of the LEIC Act (by s 3) include facilitating the detection of corrupt conduct in law enforcement agencies, and the investigation of corruption issues that relate to law enforcement agencies. The LEIC Act, s 3(2), establishes the office of the Integrity Commissioner, and the ACLEI.

10    Section 154(1) of the LEIC Act provides that a “person (other than a staff member of ACLEI) may refer to the Minister an allegation, or information, that raises an ACLEI corruption issue”. An ACLEI corruption issue is defined in s 8(1) as follows:

(1) ...    an ACLEI corruption issue is an issue whether a person who is, or has been a staff member of ACLEI:

(a) has, or may have, engaged in corrupt conduct; or

(b) is, or may be, engaging in corrupt conduct; or

(c) will, or may at any time in the future engage in corrupt conduct.”

11    Section 6(3) provides that a staff member of ACLEI engages in corrupt conduct if the staff member, while a staff member of ACLEI, engages in:

(a)    conduct that involves, or that is engaged in for the purpose of, the staff member abusing his or her office as a staff member of ACLEI; or

(b)    conduct that perverts, or that is engaged in for the purpose of perverting, the course of justice; or

(c)    conduct that, having regard to the duties and powers of the staff member as a staff member of ACLEI, involves, or is engaged in for the purpose of, corruption of any other kind.

12    In circumstances in which one of the issues on this application is relevance, Mr Mentink’s letter of 12 May 2012 is set out in full below with the enclosures omitted:

Honourable Minister,

On 8 November 2008 I provided information to Integrity Commissioner Philip Moss which raised a number of AFP corruption issues. In December 2011 the Commissioner reconsidered and decided to cease investigation.

During the period July 2009 until December 2011 I heard absolutely nothing from Mr Moss or ACLEI. I did not receive a sole letter purportedly sent by email on 3 August 2010; had I seen it I would have acted and my subsequent correspondence would have been very different.

Your office has previously, through the hands of your predecessors, been involved in the matters complained of, and in October 2010 your office made inquiries with the AFP and ACLEI resulting from, as I understand it, a letter I had written to numerous members of parliament together with a letter for Commissioner Negus (which I have attached). In the letter to Mr Negus I summarized point by point my allegations.

In December 2011 I applied to ACLEI for FOI access to discover what had led to the curious reasons set out in the closure advice from ACLEI.

If you refer to earlier correspondence concerning these matters (pre-ACLEI), you and/or your staff are likely to become very confused. Blame for this confusion I lay unhesitatingly at the feet of the AFP. I had truly hoped that ACLEI investigators would unravel and clean up the AFP’s disinformation.

I have attached a document containing an interim analysis of the information disclosed. I am personally persuaded, and I believe that an impartial reader would agree, that the concerns I raised now are substantial. I regret that the extent of FOI redactions has not enabled a fuller analysis. Although I have applied for Information Commissioner review, I cannot expect a resolution before the end of the year.

The events giving rise to AFP corruption issues began in 2003. In 2004 I lodged an extensive complaint with the Ombudsman but received no response. The complaint was sent by the Ombudsman to the AFP where it rested with the PRS, seemingly dormant. Aroused by news of the theft of my vessel with possible involvement of the AFP, I contacted the Ombudsman. A Nicholas Sellers provided a written decision soon after on 10 November 2004, dismissing my complaints in the most extraordinary fashion. Until Mr Moss advised in June 2009 that he would investigate some of the AFP matters of 2003, and further complains about AFP conduct, the “Sellars Decision” survived numerous attempts to disturb it.

Mr Moss did not advise me that he had referred my previous information to the AFP to investigate.

One of your options is to refer the present ACLEI corruption issue to Mr Moss. The problem does not involve one person – it pervades all of ACLEI and involves Mr Moss himself. This will be clear on examining the attached document. I suggest to you that referred to Mr Moss would be inappropriate.

In precisely the same way, Mr Moss’ referral of my information to the AFP was totally inappropriate. One of the issues I had raised was the complaint handling of the PRS in 2004. It is clear, however, that Mr Moss stipulated ACLEI’s oversight and two-monthly reporting. There is no evidence of any oversight or any report, or indeed of the PRS report leading to the 2004 Ombudsman’s decision.

In early 2010 I learned by chance that the matter was with the PRS, and discovered that the manager of the PRS, Mark Walters, was a person involved in my complaints against the AFP. In June 2010 the AFP woke up to this fact and requested that the investigation be returned to ACLEI. This occurred on 1 July 2010.

My early 2010 researches also revealed that Nicholas Sellars was now working in ACLEI. This “sensitivity” was noted by ACLEI, but no action was taken.

The problems of the Sellars Decision of 2004 are such that were the matter to be investigated Mr Sellars would be discredited to the extent that he must resign or be dismissed from ACLEI. In a nutshell, the Sellars Decision, in good part and in full spirit, had been accepted for investigation by an organization employing Mr Sellars.

Had something been done about this when the matter returned to ACLEI in July 2010, ACLEI’s integrity may have survived. ACLEI’s executive was well aware of the Sellars problem, yet Mr Sellars became involved in the matter.

To cap all of this off, on 11 November 2011 a file note appeared, written by an ACLEI staff member who had worked in the Office of the Ombudsman in 2004. Had this note, a declaration, been written by Sellars, it would have exposed him to serious allegations, but ACLEI has advised that the note was written not by Sellars, but by a second person formally with the Ombudsman in 2004. Given the presence of this note on the file, the absence of any declaration or any other exonerating document in respect of Mr Sellars is absolutely astonishing.

Noting S154(5), I advise you that following a meeting with Senator Hogg I have referred my concerns about ACLEI to the Commonwealth Ombudsman, who has consistently refused to review the Sellars decision from 2004 until the present time. I believe that the Act would not permit you to decline to take further action because the matter is with the Ombudsman – who is obviously in a difficult position.

I raise ACLEI corruption issues with you, hopeful that you will appoint a special person to investigate. I wish to be kept fully informed, and hope that, unlike the ACLEI investigation, I can be involved in some way.

Please note that the attached document addresses only the way in which ACLEI conducted the matter. The final decision involved a consideration of basically two questions: firstly did the allegations of AFP corruption merit ongoing investigations; secondly, are ACLEI’s limited resources better deployed in other matters. Essentially my information addresses everything that happened up until officer “C” decided to wind up the matter.

I am presently preparing a document dealing with the final decision: the “reasons” provided by officer “C” to the Commissioner, the reasons given by Commissioner Moss, and the reasons provided to me by Executive Director Hayward. I will send you a copy.

But my information alleging ACLEI corruption is not a complaint about the final decision. Philip Moss does not accept and address complaints. He addresses information that raises corruption issues, and he is not required to deliver an outcome or complaint resolution to an informant. There may well be circumstances in which difficult decisions must be made – to go on with one matter while dropping another.

It is ACLEI’s conduct leading to the decision that raises corruption issues.

13    On 6 July 2012, the Minister advised that he had decided to take no further action in relation to Mr Mentink’s allegations. Mr Mentink sought review of the Minister’s decision in the Federal Court.

14    On 29 May 2014, prior to that Federal Court review hearing, Mr Coles wrote, on behalf of the Minister, to Mr Mentink explaining that the Minister proposed to remake his decision. Mr Coles explained that the Minister would have regard to the following matters in remaking his decision, as well as any further information from ACLEI:

•    Mr Mentink’s letter to Senator Brett Mason, dated 19 March 2012, and its enclosures;

•    Mr Mentink’s letter to the former Minister for Home Affairs and Justice, dated 12 May 2012, and its enclosures;

•    Mr Mentink’s letter to the former Minister for Home Affairs and Justice, dated 16 November 2012;

•    Mr Mentink’s affidavit to the court and its annexures, which were filed on 5 March 2014;

•    Mr Mentink’s submissions to the court, which were filed on 22 May 2014; and

•    documents released to Mr Mentink by the Attorney-General’s Department under the Freedom of Information Act 1982 (Cth) on 3 February 2014.

15    In June 2014, Mr Mentink made submissions to the Criminal Justice Division of the Attorney-General’s Department (the Department) and the Department also received a report from ACLEI (which was provided to Mr Mentink). Mr Mentink subsequently responded to the ACLEI report.

16    On 15 August 2014, the Department provided the Minister with a written submission and various attachments. The attachments included:

(1)    the 29 May 2014 letter to Mr Mentink saying that the Minister proposed to remake his decision;

(2)    Mr Mentink’s June 2014 submissions;

(3)    the ACLEI report;

(4)    Mr Mentink’s response to the ACLEI report;

(5)    a letter dated 19 March 2012 from Mr Mentink to Senator Mason, and enclosures;

(6)    a letter dated 16 November 2012 from Mr Mentink to the former Minister for Home Affairs and Justice;

(7)    Mr Mentink’s affidavit and annexures dated 5 March 2014 in the Federal Court proceedings and his submissions;

(8)    a copy of documents released by the Department to Mr Mentink under the Freedom of Information Act 1982 (Cth) on 3 February 2014; and

(9)    two draft letters addressed to Mr Mentink from the Minister (one which said that the information demonstrates that further investigations is warranted; the other which said that no further action would be taken).

17    Mr Mentink has copies of all of these documents.

18    On 5 September 2014, the Minister sent to the Department a copy of the Department’s submission endorsed with the Minister’s decision. The Minister had circled “not agreed” to the recommendation to authorise a person to conduct a special investigation of the alleged ACLEI corruption issues referred by Mr Mentink. The Minister had circled “agreed” to the alternative recommendation to take no further action.

19    On 30 September 2014, the Department sent Mr Mentink a letter, signed by the Minister, explaining that under s 156(2)(c) of the LEIC Act, the Minister had decided to take no further action. The Minister explained that in making his decision he had had regard to various information: Mr Mentink’s 12 May 2012 letter and enclosures, the documents set out above at [16] (2),(3),(4),(5),(6),(7), and (8).

20    Mr Mentink now seeks to review the Minister’s decision. He makes the following allegations about the decision:

(1)    that it was an improper exercise of power;

(2)    that the Minister failed to take relevant considerations into account;

(3)    that the Minister breached the rules of natural justice in connection with the making of the decision;

(4)    that the Minister made an error of law;

(5)    that the Minister misconstrued the relevant statute in a way that led to the Minister misconceiving the extent of his powers;

(6)    that the Minister entertained a matter that lay outside the limits of his powers;

(7)    that the exercise of the Minister’s power was so unreasonable that no reasonable person could have so exercised the power;

(8)    that the Minister was biased and in a position of conflict of interest; and

(9)    that the Minister’s decision was “affected by fraud and made in bad faith”.

The documents and categories of document of which Mr Mentink seeks discovery

21    Mr Mentink seeks discovery orders concerning the following documents or categories of document:

(1)    transcript dated 9 July 2010 and prepared from a compact disc in 2013 by the ACLEI, being a record of dialogue involving the then ACLEI Director of Investigations Peter Bache and another believed to be Mark Walters, and the files stored on the compact disc;

(2)    transcript dated 10 November 2010 and prepared from a compact disc in 2013 by the ACLEI, being a record of dialogue involving the then ACLEI Director of Investigations Peter Bache and another believed to be Jeffrey Caldwell in the presence of a second ACLEI officer, and the files stored on the compact disc;

(3)    Australian Federal Police (AFP) “case note” dated 5 June 2003 and described as “Log No. 2” a redacted copy of which is annexed to Mr Mentink’s 18 November 2014 affidavit at page 10 in support of this application for discovery;

(4)    the documents described as folios 1 to 50 in an AFP decision under the Freedom of Information Act 1982 (Cth) dated 31 October 2011 given the AFP reference “CRM 2011 / 71”, being various communications involving the AFP and foreign law enforcement agencies in particular the Indonesian National Police (INP) namely:

(a)    the following annexures to Mr Mentink’s 5 March 2014 affidavit annexed to his affidavit filed in this matter on 28 November 2014, being redacted copies of AFP “Overseas Liaison Communications” to which full access is sought:

(i)    WM46 dated 5 March 2007

(ii)    WM47 dated 18 and 30 April 2007

(iii)    WM48 dated 29 August 2007

(iv)    WM49 dated 3 September 2007

(v)    WM50 dated 25 September 2007

(vi)    WM51 dated 28 September 2007

(vii)    WM52 dated 10 March 2009

(b)    the following documents to which no freedom of information access was given, as best fits the description:

(i)    14 February 2007 (6 pages) AFP letter regarding Mr Mentink/Larus II to INP;

(ii)    21 February 2007 (4 pages) AFP letter regarding Mr Mentink/Larus II to INP;

(iii)    23 February 2007 (7 pages) AFP letter regarding Mr Mentink/Larus II to INP;

(iv)    3 April 2007 (3 pages) INP letter and translation to AFP;

(v)    1 May 2007 (4 pages) AFP letter regarding Mr Mentink/Larus II to INP;

(vi)    31 August 2007 (2 pages) AFP letter regarding Mr Mentink/Larus II to INP;

(vii)    10 September 2007 (2 pages) AFP letter regarding Mr Mentink/Larus II to INP; and

(viii)    8 November 2007 (6 pages) INP letter and translation to AFP.

(5)    The letter from “F/A Byrnes” to Mr Bache dated 16 July 2010, a redacted copy of which is annexed to Mr Mentink’s 18 November 2014 affidavit at page 12 in support of this application for discovery.

(6)    The category of documents confined to the description “AFP records pertaining to any referral of Mr Mentink’s allegation of theft of the vessel Larus II to the Indonesian National Police”, such referral having being asserted by F/A Byrnes in the letter described in (5) above.

(7)    The category of documents comprising advices and correspondence such as letters and emails relating to the notifications of ACLEI corruption issues by the Integrity Commissioner to the Minister on 9 March 2013 and 4 June 2013 and the Minister’s decision communicated on 7 January 2014 that are annexed as WJM94, WJM98, and WJM99 respectively to Mr Mentink’s affidavit filed in this matter on 8 December 2014.

Mr Mentink’s application was based on the wrong rule

22    In Mr Mentink’s application for discovery and in his written submissions he relied upon r 20.21 of the Federal Court Rules 2011 (Cth). Rule 20.21 is concerned with an application for a party to be ordered to file an affidavit stating (i) whether a document or category of document is or has been in that party’s control; and (ii) if so, and if no longer in that party’s control, when it was last controlled and what became of it.

23    In his written submissions, Mr Mentink supported this application on the following basis:

An order under rule 20.21 would do no more than result in an affidavit stating whether or not the specified documents or category of documents are in the control of the Minister. This sets the application well apart from the more usual kinds of proceedings in which discovery is sought. It requires firstly that the [Minister] declare whether or not he has the power over the documents of the agencies for which he has responsibility. If that bridge is crossed the applicant will see a list of documents that may conform to his own specified documents and categories. It would appear that in giving other forms of discovery the [Minister] would decide whether a document is relevant, but where specific documents are sought under r  20.21 their relevance is decided by the Court.

24    Affidavit evidence for the Minister has been filed by Mr Coles who is the Assistant Secretary in charge of the Criminal Law and Law Enforcement Branch of the Criminal Justice Division of the Attorney General’s Department. A section within that Branch considers allegations within s 156 of the LEIC Act and makes submissions to the Minister concerning his response. Mr Coles says that the Department does not have possession or custody of any of the documents except those in category (7) (above at [21]). Mr Coles considers that to obtain possession of those documents the Minister would need to seek permission from the ACLEI or the AFP. Those agencies would then determine whether to grant access to the Minister.

25    This affidavit evidence from Mr Coles satisfies the requirements of r 20.21. It is an affidavit which deposes to facts from which a person could determine whether the Minister has control over the documents sought.

26    From the facts described by Mr Coles, the Minister has control over the documents in category (7). In relation to the other categories, as I explain below, there is doubt concerning whether as a matter of law, based on the facts described by Mr Coles, the Minister has control over the remaining documents. In any event, Mr Coles’ affidavit satisfies the requirements of r 20.21. It would be pointless to make any order requiring the Minister to file another affidavit.

Three other reasons why the Minister resists orders for discovery

27    Although my conclusion above is sufficient to dismiss Mr Mentink’s application based on r 20.21, it is necessary to address the issue which was Mr Mentink’s ultimate aim. This is discovery by list, followed by an order for inspection (r 20.32(1)). To obtain this, Mr Mentink requires either standard discovery (r 20.14), or more extensive discovery (r 20.15). The submissions of the Minister properly engaged with this issue and Mr Mentink responded to those submissions in some detail.

28    Rule 20.11 of the Federal Court Rulesprovides that a party must not apply for an order for discovery unless the making of the order sought will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible.

29    Rule 20.14(1) provides that if the Court orders a party to give standard discovery, the party must give discovery of documents: (a) that are directly relevant to the issues raised by the pleadings or in the affidavits, (b) of which, after a reasonable search, the party is aware, and (c) that are, or have been, in the party’s control.

30    If documents are not directly relevant, and are not within the party’s control then there is no point in ordering standard discovery. Mr Mentink must show that the seven categories of document are categories that are directly relevant to either (i) issues raised in his review application or (ii) issues raised in an affidavit he filed accompanying his originating application or in an affidavit from the Minister in response (see r 20.14(4)).

31    The Minister essentially resists an order for discovery for three reasons.

32    First, the Minister also says that the documents sought by Mr Mentink do not satisfy the requirements of r 20.14(1)(a) because they are not directly relevant to the issues raised by the pleadings or in the affidavits. This was the primary focus of the Minister’s submissions.

33    Secondly, the Minister submits that the application for discovery is an abuse of the process of the Court because it is made for a purpose other than one which is relevant for these proceedings and is not made with an object or expectation of obtaining evidence that is relevant to these proceedings. However, as senior counsel for the Minister accepted in oral submissions, if the documents were in the control of the Minister it is difficult to see how it would be an abuse of process to bring a standard discovery application. There is a separate issue, however, concerning whether the order for discovery would facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible (r 20.11). The Minister’s point is that this application for discovery does not do so because it does not permit the Commissioner of the AFP and the Commissioner of the ACLEI to make submissions concerning discovery and potential inspection in relation to matters on which they have a direct interest.

34    Thirdly, the Minister says that the documents sought by Mr Mentink (other than those in category (7) above) do not satisfy the requirements of r 20.14(1)(c) because they are not, and have never been, in the Minister’s control.

35    Each of these matters is addressed below.

(1) The documents are not directly relevant to the issues raised by the pleadings or in the affidavits

36    I have already explained that the making of an order for standard discovery is a discretionary matter.

37    If standard discovery is ordered, one requirement is that the party must give discovery of documents that are directly relevant to the issues raised by the pleadings or in the affidavits. That direct relevance is defined in r 20.14(2) as requiring, in this case, that the documents (a) are those on which the Minister intends to rely, (b) the documents adversely affect the Minister’s case, and (c) the documents support Mr Mentink’s case.

38    Mr Mentink submits that ACLEI’s handling of his allegation and information was “fatally deficient”. He points to a list of matters which he says support this submission. He says that he “has selected certain AFP records which he believes on good and carefully considered grounds, but cannot of course prove, to bring his evidence to the threshold where the Minister must find it irresistible”. He says that his “mounting evidence continues to fail to move the Minister” and that the AFP documents take the 2003 issues into a “whole new territory” because these are documents that were never sought by ACLEI and never provided by the AFP.

39    The seven categories of document of which Mr Mentink seeks discovery might possibly be relevant (although not directly relevant) as part of a train of inquiry if this Court were to hold a fresh trial of the issue of whether an ACLEI corruption issue occurred: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55, 63 (Brett LJ). But the substantive proceeding is a review proceeding. The decision which Mr Mentink challenges is a decision by the Minister of Justice to take no further action. That decision was made based upon the material before the Minister which is set out above at [19]. None of the documents sought were before the Minister.

40    Further, in relation to each of the categories of document for which discovery is sought, other than category (7) which I have described above, the Minister summarises the nature of those documents as concerned with (i) interviews between an ACLEI officer and two Australian Federal Police officers (categories 1, 2, and 5 in [21] above), and (ii) documents concerning Mr Mentink’s allegations concerning his yacht in East Timor in 2003 (categories 3, 4, and 6 in [21] above). Although these descriptions are in extremely broad terms, they do not disclose any direct relevance to an “ACLEI corruption issue” by a staff member of ACLEI. Nor does anything in Mr Mentink’s submissions establish such direct relevance.

41    In relation to the documents in category (7) (see [21] above), Mr Mentink accepts that these documents relate to (i) a different decision, (ii) based on notification to the Minister by the Integrity Commissioner, and (iii) under a different section (s 153) of the ACLEI Act. Mr Mentink says that the documents are nevertheless relevant to this application because the notification by the Integrity Commissioner was based on the same information that Mr Mentink had provided to the Minister which led to the Minister’s decision, which is the subject of these proceedings, not to take further action.

42    It is difficult to see how these documents in category (7), and Mr Mentink’s submission, can do anything other than distract from the just and efficient resolution of these judicial review proceedings. The question in these proceedings is whether the Minister’s decision to take no further action in relation to Mr Mentink’s information should be quashed and further consequential orders made upon quashing that decision. The Minister’s decision was taken purportedly under s 156(2)(c) which empowers the Minister to decide “to take no further action in relation to the ACLEI corruption issue”. Mr Mentink did not explain how the “awareness” of an ACLEI corruption issue by the Integrity Commissioner, even if based on the same information, could mean that the Minister’s decision to take no further action in relation to a different issue, or even the same issue, was invalidated and a new decision should be made.

43    Mr Mentink has failed to establish the direct relevance of any of the seven categories of document to the review application. Even if the documents had some relevance, their relevance would be so marginal that discovery of them would not facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible. Instead, it would distract the Court from the central issue raised by Mr Mentink which is the judicial review of the Minister’s 30 September 2014 decision.

(2) Discovery from the Minister of will not facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible

44    There is a separate reason why an order for standard discovery of the documents sought by Mr Mentink, other than those in category (7), will not facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible.

45    The separate reason is that even if the Minister had power to obtain those documents I do not consider that it would be appropriate to make the order without hearing from the parties who possess those documents and who know the contents of the documents. Those two parties are the AFP and the ACLEI. The just, and also the least expensive and most efficient, course would have been for Mr Mentink to bring an application for non-party discovery from the AFP and the ACLEI under r 20.23 of the Federal Court Rules.

46    It has often been said that an order for non-party discovery is exceptional and should generally only be sought when rights with respect to discovery have been exhausted against the other party to the proceedings: see, for instance, Humphries v SAS Signage Accessories Supplier Pty Ltd (No 2) [2009] FCA 1238 [20] (Spender J). But this is only a general principle. There is no such express or implied limitation in r 20.23: see also Richardson Pacific Ltd v Fielding [1990] FCA 257; (1990) 26 FCR 188, 189 (Burchett J). The basis for the general principle is a concern not to burden a non-party to litigation with the obligations of litigation. For instance, where a party to litigation possesses documents then it is generally that party who should answer for the discovery of the documents so that the costs and burdens of litigation are not unnecessarily imposed upon a non-party. This case does not fall within the usual circumstances for three reasons explained below.

47    A just determination of the proceeding means that it would not be appropriate to make orders for discovery of the remaining documents other than those in category (7) against the Minister without hearing from the AFP or the ACLEI. Part of Mr Mentink’s application is based upon documents which were refused in a Freedom of Information application. It is likely that the ACLEI and AFP would wish to resist the production of at least these documents. By seeking discovery of these documents from the Minister, Mr Mentink would seek to obtain these documents without providing the ACLEI or the AFP an opportunity to make submissions on a matter upon which they have a direct interest: see Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52, 55 (Lord Diplock); News Ltd v Australian Rugby Football League Ltd [1996] FCA 870; (1996) 64 FCR 410, 525 (the Court).

48    It may be that a non-party will rarely have any interest in resisting a demand for documents from a party to litigation where that party to the litigation has a power to demand the documents and the demand is compelled by court process. But, in this case, even if the Minister controlled the documents (in the sense of having a legal power to obtain them) there is a real prospect that the ACLEI or AFP would wish to resist an order for inspection for reasons such as public interest privilege: Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1. This issue has been raised by the Minister in submissions but it is an issue that should be agitated by the ACLEI and AFP themselves. They should not be deprived of the opportunity of making their own submissions. It is not to the point that, as Mr Mentink suggests, the ACLEI and AFP have previously been represented by the same solicitors as the Minister. Lawyers act upon instructions. The ACLEI and the AFP should be given the opportunity of making submissions on matters which concern them.

49    Further, in a non-party discovery application the ACLEI and AFP would have the opportunity of raising issues concerning statutory immunity from production. The basis for such a statutory immunity argument is that the LEIC Act contains various secrecy provisions in ss 207, 208 and 211 which proscribe the disclosure of information by ACLEI staff members (as defined in s 5). There are exemptions in those provisions for the communication of information for the purposes of a corruption investigation. But there are specific exclusions in s 211(2)(a). One exclusion is that a staff member of the ACLEI is not compellable in any proceedings to disclose information including information that he or she acquired because of his or her being or having been a staff member of ACLEI and which was disclosed or obtained under the provisions of, or for the purposes, of, the LEIC Act. Another exclusion is where the document has come into the staff member’s custody or control in the course of, or because of, the performance of his or her duties under the LEIC Act and was produced under the provisions or for the purposes of the LEIC Act.

50    The same statutory immunity argument might also be made in relation to documents in the possession of the AFP. The Australian Federal Police Act 1979 (Cth) (AFP Act), s 60A, prohibits disclosure of information to another person except for specific purposes or with the authorisation of the Commissioner. Legal proceedings are not one of those purposes.

51    I do not consider it necessary or appropriate to reach a final conclusion about the scope of the Minister’s power to obtain the documents other than those in category (7). This question of power is one which concerns the governing statutes of the ACLEI and AFP and which will impact upon their duties. A final conclusion should not be reached without giving them the opportunity of making submissions on issues which concern their governing legislation and any obligations which might be indirectly imposed upon them by the Court. Also relevant, although of less significance, is that the effect of an order for standard discovery in this case could require the ACLEI and AFP as non-parties to incur costs and expenses without the possibility of obtaining orders for security or payment under r 20.25.

(3) The documents are unlikely to be in the Minister’s control

52    Mr Mentink accepts that the documents (other than those in category (7) described at [21] above) are controlled by the ACLEI and the AFP. His submission is that the Minister also has “power over documents of ACLEI and the AFP – two agencies for which the Minister has portfolio responsibility”. The Minister denies that he has power to obtain these documents. As I have explained, it is neither necessary nor appropriate to reach a final conclusion on this point. However, in deference to the very detailed submissions by both parties I will express some preliminary observations.

53    The requirement for standard discovery in r 20.14(1)(c) that the documents be in the Minister’s “control” is defined in the Dictionary (Schedule 1) of the Federal Court Rules to mean “possession, custody or power”. This is an expression with a long history.

54    In Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627, the House of Lords considered whether a parent company had “power” over documents in the possession of its foreign subsidiary. The issue arose in the context of Order 24, rule 2(1) of the English Rules of the Supreme Court. That rule relevantly provided that each party to an action must:

... make and serve on [the] other party a list of documents which are or have been in the possession, custody or power relating to any matter in question between them in the action.

55    Lord Diplock said at 635:

... in the context of the phrase “possession, custody or power” the expression “power” must, in my view, mean a presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else. Provided that the right is presently enforceable, the fact that for physical reasons it may not be possible for the person entitled to it to obtain immediate inspection would not prevent the document from being within his power; but in the absence of a presently enforceable right there is, in my view nothing in O 24 to compel a party to a cause or matter to take steps that will enable him to acquire one in the future.”

56    This passage concerning the meaning of “power” in the context of discovery has been cited and applied on many occasions: see Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Engeria S.R.L. (No 8) [2014] FCA 376 [17]-[19] (Besanko J); Bora v Avati [2009] NSWSC 921 [360]-[365] (Ward J); Psalidis v Norwich Union Life Insurance [2009] VSC 417; (2009) 29 VR 123 [34] (Cavanough J).

57    In Taylor v Santos Ltd (1998) 71 SASR 434 at 438, Doyle CJ (with whom Prior J agreed) said of the Lonrho formulation:

In my opinion the court should be cautious in extending the concept of power beyond the concept of a presently enforceable legal right, even though it may be appropriate to do so. Reading r 58 as a whole, my view is that the obligation to discover a document is limited to a document that the person in question had the legal power or (I can think of no better expression) actual and immediate ability to inspect, even though the document is the property of or is held by another person. That power or ability might exist in relation to a document that a person is not able to produce for inspection to a third person, for example a document in which a person has joint property with another person. But, in my opinion, the obligation to discover hinges upon having a right or actual and immediate ability to examine the document. A person does not have that right or actual immediate ability if the person is able to inspect the document only if a third person, who has control of the document, agrees to permit inspection or agrees to refrain from so exercising that person's control as to prevent inspection.

58    Although the remarks of Lord Diplock in Lonrho have been applied on a number of occasions in Australia courts have occasionally, and rightly, been cautious in doing so.

59    One reason for this caution is that although the Lonrho appeal was, quite remarkably, an interlocutory appeal about discovery which was heard over four days, the respondents were never called upon to make submissions. Lord Diplock had prefaced his remarks by an observation, at 632, that the circumstances of the application in Lonrho were “quite exceptional” and that they were not suitable for a general disquisition by the House of Lords upon discovery principles.

60    Another reason why Lord Diplock’s remarks should be applied with great caution is because the definition of power as “a presently enforceable legal right” is not a legislative definition. Nor did Lord Diplock claim that the definition was the ordinary meaning of the word “power”. It may be that this particular legal meaning had become a term of art by the time of the Federal Court Rules in 2011. But no submissions were made on this point. It suffices to say that I accept that the concept of a “presently enforceable legal right” is at least a useful place to start for an analysis of whether documents are in the “power” of a party.

61    The LEIC Act and AFP Act do not expressly confer any presently enforceable legal right of the Minister to obtain the documents possessed by those bodies.

62    As to the ACLEI, the LEIC Act confers power on the Minister to give particular directions to the Integrity Commissioner (s 171). It requires the Integrity Commissioner to keep the Minister informed about the progress of an investigation under s 161. But the LEIC Act does not give the Minister any power to direct or control the manner in which the ACLEI generally performs its functions, nor any express power to obtain documents held by the ACLEI.

63    As to the AFP, the AFP Act provides that the Commissioner has general administration of, and control of the operations of the AFP (s 37). It provides for powers for the Minister to direct the Commissioner concerning general policy in relation to the performance of the functions of the AFP (s 37(2)) and in relation to the use of services common to the AFP and State police (s 37(3)). But it does not provide any express power for the Minister to direct the Commissioner or the AFP about specific operational matters or to provide documents. And, as I have explained at [50], the AFP Act, s 60A, prohibits disclosure of information to another person except for specific purposes.

64    For these reasons, although the Minister may have power to request and, with approval, receive documents from the ACLEI or the AFP, my preliminary view is that neither the LEIC Act nor the AFP Act expressly permits the Minister of Justice to demand documents in the categories in this case (other than category (7)) as of legal right.

65    Nor could it be said, on the evidence before the Court, that the “true nature of the relationship” between the Minister and the ACLEI or AFP is that the Minister is the “puppet master” of the latter two, or the latter two are “agents” of the Minister in the sense in which common law agency is understood: North Shore Ventures Limited v Anstead Holdings [2012] EWCA Civ 11 [40] (Toulson LJ).

66    Mr Mentink’s submissions raised the prospect that the Minister might have power to obtain the documents as a consequence of convention arising from representative democracy. The evidence of Mr Coles suggests that any such convention might not be recognised by the ACLEI. Such a convention would also have to be assessed together with the provisions of the LEIC Act and the AFP Act.

67    Alternatively, Mr Mentink appeared to suggest that the Minister might have some implied power to obtain the documents as a necessary concomitant of the Minister’s powers in s 156 of the LEIC Act. Such an implication would need to be made in the absence of express words and in the context of the provisions concerning the powers of the Minister that I have described above (as to which implication see Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 88 ALJR 473, 483 [38] (French CJ, Crennan and Bell JJ)). In the absence of full submissions on this point, including from the ACLEI and the AFP, it is unnecessary to reach any conclusion upon it.

68    Although I reach no final conclusion on this point, it suffices to say that there is, at least, a strong argument that the Minister has no power to obtain the documents in the absence of any evidence of a generally accepted practice or convention, consistent with the terms of the LEIC Act and the AFP Act, that documents sought by the Minister would not be refused. This doubt reinforces my conclusion that if any documents were to be discovered which were in the possession of the ACLEI or the AFP then the appropriate course would have been an application for non-party discovery.

Conclusion

69    The application must be dismissed. This is not merely a matter of the application being brought in the wrong form of a discovery application against a party rather than against non-parties. Mr Mentink’s application unnecessarily raised issues, such as the power of the Minister to compel production of documents, which would not have been necessary if he had brought an application for non-party discovery. Mr Mentink’s submissions also relied upon the public interest involved in these proceedings including in relation to the ACLEI Act. Yet his application would have prevented the non-parties most directly affected by these issues from making submissions upon them.

70    Most fundamentally, this application fails on the basis that none of the documents for which discovery is sought is directly relevant. Further, any discovery would not facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible particularly in circumstances in which the documents, other than those in category (7), are unlikely to be in the control of the Minister and an order for discovery would affect the rights of non-parties who have not had the opportunity to make submissions.

71    Mr Mentink submitted that it was not appropriate to award costs on a discovery application. That submission is incorrect. His application has been unsuccessful. In the circumstances here it is appropriate that Mr Mentink pay the Minister’s costs of this application.

72    Mr Mentink also applied for orders setting aside the costs orders made by Collier J, the previous docket judge in this matter, on 24 March 2015. He has never sought leave to appeal from those orders. He made no submissions providing any reason why, absent any appeal, those orders should be set aside. I also decline this application.

Associate:    

Dated:    13 October 2015