FEDERAL COURT OF AUSTRALIA

Mentink v Minister for Justice [2016] FCA 432

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dealt with without an oral hearing.

2.    The application for leave to appeal is dismissed.

3.    The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    This is an application for leave to appeal against a judgment of Edelman J delivered on 13 October 2015 dismissing the applicant’s application for discovery of particular documents and categories of documents.

2    The applicant has applied under r 35.18(1) of the Federal Court Rules 2011 (Cth) for an order that the application for leave to appeal be dealt with without an oral hearing. The respondent has not objected to that course. There will be an order that the application be dealt with without an oral hearing.

3    Both parties have filed written submissions. I have taken those submissions into account, together with the material that was before the primary judge.

4    For the reasons that follow, the application for leave to appeal will be dismissed with costs.

Background

5    The applicant’s substantive application seeks judicial review of the respondent’s decision made on 30 September 2014 under s 156(2)(c) of the Law Enforcement Integrity Commissioner Act 2006 (Cth) (“LEIC Act”) to take no further action in relation to allegations of corruption made by the applicant. The applicant alleges that the Australian Federal Police (“AFP”) engaged in corrupt conduct, including falsely arresting him, blocking his travel to several countries and allowing his yacht to be stolen. The applicant also alleges that the investigation into his allegations of corruption by the Australian Commission for Law Enforcement Integrity (“ACLEI”) was deficient.

6    In his application for judicial review, the applicant alleges that the Minister:

(a)    improperly exercised his power;

(b)    failed to take relevant considerations into account;

(c)    breached the rules of natural justice;

(d)    made an error of law;

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

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

(g)    unreasonably exercised his power;

(h)    was biased and had a conflict of interest; and

(i)    made the decision in bad faith and that the decision was affected by fraud.

7    The Minister had regard to the following documents in making his decision:

    The applicant’s June 2014 submissions made to the Attorney-General’s Department;

    The applicant’s letter to Senator Brett Mason, dated 19 March 2012, and its enclosures;

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

    The applicant’s letter to the former Minister for Home Affairs and Justice, dated 16 November 2012;

    The applicant’s affidavit and annexures, dated 5 March 2014, in the Federal Court proceedings and his submissions;

    The ACLEI report;

    The applicant’s response to the ACLEI report; and

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

Application for discovery

8    On 18 November 2014, the applicant made an application for discovery of the following documents or categories of documents:

(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)    AFP “case note” dated 5 June 2003 and described as “Log No. 2” a redacted copy of which is annexed to the applicant’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 the applicant’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 the applicant/Larus II to INP;

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

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

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

(vii)    10 September 2007 (2 pages) AFP letter regarding the applicant/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 the applicant’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 the applicant’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 the applicant’s affidavit filed in this matter on 8 December 2014.

9    Before the primary judge, the applicant accepted that none of the documents of which he sought discovery were before the respondent at the time he made his decision to take no further action.

The legislation

10    The respondent’s decision was made under s 156 of the LEIC Act, which provides:

156     How Minister may deal with ACLEI corruption issues

Application of section

(1)    This section applies if:

(a)    the Integrity Commissioner, or another staff member of ACLEI, notifies the Minister of an ACLEI corruption issue under section 153; or

(b)    a person refers an allegation, or information, that raises an ACLEI corruption issue to the Minister under section 154; or

(c)    the Minister otherwise becomes aware of an ACLEI corruption issue.

How Minister may deal with ACLEI corruption issue

(2)    The Minister may:

(a)    refer the ACLEI corruption issue to the Integrity Commissioner for investigation under Division 3; or

(b)    authorise a person to conduct a special investigation of the ACLEI corruption issue under Division 4; or

(c)    decide to take no further action in relation to the ACLEI corruption issue.

…

11    The expression “corruption issue” is defined in s 7 of the LEIC Act to include “an issue whether a person who is, or has been, a staff member of a law enforcement agency…has, or may have, engaged in corrupt conduct”.

12    Part 20 of the Federal Court Rules deals with discovery of documents.

20.11    Discovery must be for the just resolution of the proceeding

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.

…

20.14    Standard discovery

(1)    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; and

(b)    of which, after a reasonable search, the party is aware; and

(c)    that are, or have been, in the party’s control.

(2)    For paragraph (1)(a), the documents must meet at least one of the following criteria:

(a)    the documents are those on which the party intends to rely;

(b)    the documents adversely affect the party’s own case;

(c)    the documents support another party’s case;

(d)    the documents adversely affect another party’s case

…

20.15    Non-standard and more extensive discovery

(1)    A party seeking an order for discovery (other than standard discovery) must identify the following:

(a)    any criteria mentioned in rules 20.14(1) and (2) that should not apply;

(b)    any other criteria that should apply;

…

20.21    Order for particular discovery

(1)    If a party (the first party) claims that a document or category of documents may be or may have been in another party’s control (the second party), the first party may apply to the Court for an order that the second party file an affidavit stating:

(a)    whether the document or any document of that category is or has been in the second party’s control; and

(b)    if the document or category of documents has been but is no longer in the second party’s control—when it was last in the second party’s control and what became of it.

(2)    The first party seeking an order under subrule (1) must identify the document or category of documents as precisely as possible.

(Original emphasis.)

The primary judge’s reasons

The wrong rule

13    The applicant’s application for discovery was stated to rely upon r 20.21 of the Federal Court Rules. Rule 20.21 requires only the filing of an affidavit stating whether documents are or have been in the respondent’s control and, if no longer in the party’s control, when documents were last in that respondent’s control and what became of those documents. However, the applicant sought something quite different, namely discovery by list followed by an order for inspection. The primary judge found that the applicant’s application for discovery was based on the wrong rule.

14    The respondent filed an affidavit of a departmental officer deposing that the Department had never had in its possession or custody any of the documents in the first six categories of documents sought by the applicant (and that to obtain possession of documents in those categories, the Minister would need to seek permission from the ACLEI or the AFP). The primary judge concluded that the affidavit satisfied the requirements of r 20.21 of the Federal Court Rules.

15    His Honour considered that this was enough to justify dismissal of the application, but decided to treat the application as an application for standard discovery under r 20.14 and more extensive discovery under r 20.15.

Direct relevance

16    Under r 20.14(1)(a) of the Federal Court Rules, the Court may order standard discovery of documents that are directly relevant to the issues raised in the pleadings or the affidavits.

17    The primary judge noted that the applicant sought review of the Minister’s decision to take no further action, and that decision was based on the material that was before the Minister. None of the documents sought by the applicant were before the Minister when he made his decision.

18    In addition, the documents in the seventh category related to a different decision and were based on notification by the Minister to the Integrity Commissioner under a different section of the LEIC Act.

19    The primary judge held that the applicant had failed to establish the direct relevance of any of the seven categories of document to the application for judicial review, and that even if they 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.

Control

20    The primary judge went on to consider whether the documents are, or have been, in the party’s control as is required under r 20.14(1)(c) of the Federal Court Rules. His Honour did not reach a conclusion on this issue, but said there was at least a strong argument that the Minister does not have control over the documents in the first six categories.

Non- parties

21    The primary judge held that it would not be appropriate to make an order for discovery of the documents in the first six categories without the ACLEI and AFP being given an opportunity to make submissions. By seeking discovery of these documents from the Minister, the applicant sought to obtain the documents without providing the ACLEI and the AFP with an opportunity to make submissions on a matter upon which they have a direct interest. His Honour noted that part of the applicant’s application sought discovery of some documents which were previously refused in a Freedom of Information application; and that there was a real prospect that those bodies would wish to invoke public interest privilege or statutory immunity under the LEIC Act and Australian Federal Police Act 1979 (Cth) (“AFP Act”).

22    His Honour considered that the just, and least expensive and most efficient, course would have been for the applicant to bring an application for non-party discovery from the AFP and the ACLEI under r 20.23 of the Federal Court Rules.

23    His Honour held that it was also relevant 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.

Conclusion

24    For the reasons noted above, the primary judge refused the application for discovery and ordered that the applicant pay the respondent’s costs of the application.

The application for leave to appeal

25    Under s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) (“the Act”) the Federal Court has jurisdiction to hear and determine appeals from interlocutory judgments of a single judge exercising the original jurisdiction of the Court. Section 24(1A) of the Act provides that an appeal from an interlocutory judgment of a single judge may be brought only with leave of the Court or a judge.

26    Whether leave should be granted ordinarily turns upon two considerations, namely, whether in all the circumstances the judgment is attended by sufficient doubt to warrant its being reconsidered by the Full Court, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ), Minogue v Williams [2000] FCA 125 at [19] (Ryan, Merkel and Goldberg JJ).

27    Leave is less readily granted where the interlocutory judgment concerns a matter of practice or procedure, rather than substantive rights: Décor at 400; Minogue at [19]. The judgment of the primary judge in this case concerned a matter of practice or procedure. It was not determinative of the substantive rights of the applicant at issue in the proceeding.

The grounds of the proposed appeal

28    The grounds of the applicant’s proposed appeal are as follows:

In giving effect to the Federal Court Rules pertaining to discovery:

1.     The learned judge wrongly determined rule 20.14(2) to require that all of the relevance criteria given under subrule (a), (b), and (c) be met in determining whether a document is discoverable, other than in accordance with r20.15.

2.     The learned judge wrongly adverted to r20.14 and its requirement that a party make discovery of all documents directly relevant to the issues in a proceeding, the onus to determine relevance lying solely on the party against which an order is made to decide whether a document is to be discovered.

3.     The learned judge wrongly distinguished between the present judicial review and a “fresh trial of the issue of whether an ACLEI (Australian Commission for Law Enforcement Integrity) corruption issue occurred”. A core issue is whether ACLEI corruption issues were raised by the information available to the respondent, several grounds for review alleging that the respondent exceeded his powers by in fact conducting such a trial and wrongly concluding that the information before him did not demonstrate corrupt conduct in ACLEI. A further core issue will arise if ACLEI corruption issues are determined to be raised: does the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act) confer upon the Minister a discretion to take no action in respect of those corruption issues given that the Act confers no responsibility on any other person to satisfy the objects of the Act?

4.     The learned judge wrongly declined to order discovery of documents of the Department of the Attorney General (AGD) relating to a decision by the Integrity Commissioner and the Minister in respect of corruption issues arising from the very corruption issues in the present matter on the basis of lack of relevance and likelihood that the documents would “distract from the just and efficient resolution” of the judicial review proceeding, being considerations that are in tension.

5.     The learned judge’s assessment of relevance in exercising his discretion to make no orders for discovery was so unreasonable that no reasonable person could have so exercised the discretion on the basis of lack of relevance.

6.     The learned judge failed to distinguish the object of discovery, namely a declaration of the existence of documents in the power of a party that are [sic] relate to a proceeding, from the object of production, which is to permit another party to ascertain the contents of the discovered documents.

7.     The learned judge failed to acknowledge that the respondent’s affidavit of 12 May 2015 was not provided under any rule in Division 20.2 of the Federal Court Rules, not ordered by the Court, and not in Form 38.

8.     The learned judge erred in concluding that discovery should not be ordered because none of the documents sought were included in the set of the documents declared to be before the Minister and taken into account in the making of the decision (the “declared documents”) because

a.    While as a general principle in common law judicial review of an administrative decision is confined to the reasons provided and the declared documents, it is also common law that there may be exceptional circumstances in which further documents may be discovered and produced;

b.     The documents sought to be discovered had been repeatedly referred to the Minister as being pertinent to the issues raised by the applicant and were on the same footing as the information the applicant provided, albeit not yet with the benefit of the appellant’s analysis which would require discovery;

c.     In the present matter ADJR Act 1977 s13 reasons were sought and not provided.

9.     The learned judge erred in confusing the process of discovery with the process of production,

a.     the former permitting limited objection by the respondent on the grounds of relevance but not on grounds such as privilege;

b.     the latter not yet commenced in this case but in due course permitting objection to production on the ground of any statute or other form of privilege.

10.     The learned judge wrongly relied on the 12 May 2015 affidavit of Mr Coles characterizing it as satisfying the requirements of r20.21 as

a.    an affidavit complying with r20.17; and

b.     the fruit of any discovery order, in accordance with r20.12;

c.     a conclusive legal opinion or facts sufficient to ground a ruling of law.

11.     In dismissing the application for discovery the learned judge failed to give proper weight to the objects of the LEIC Act and the nature of the matter, namely that it involves issues of corruption in the form of systemic abuse of power, conduct ultra vires, and the systemic failure of government accountability all directed to perverting the course of justice.

(Emphasis and errors in original.)

Whether there is sufficient doubt to warrant reconsideration by the Full Court

29    A number of the applicant’s proposed grounds of appeal are prolix. There is substantial overlap between some of the grounds. Many of the grounds are difficult to understand. I will interpret them as best I can.

Ground 1

30    The first proposed ground of appeal alleges that the primary judge wrongly interpreted r 20.14(2) of the Federal Court Rules as requiring that paragraphs (a), (b), and (c) of that subsection each be met in determining whether a document is discoverable.

31    Rule 20.14(1) requires that a document must satisfy at least one of paragraphs (a) to (d) of r 20.14(2) if it is to be regarded as directly relevant to the issues raised by the pleadings or in the affidavits: Taylor v Saloniklis (No 3) [2014] FCA 744 at [30] (Besanko J); Dennis v Chambers Investment Planners Pty Ltd (2012) 201 FCR 321 at [32] (Barker J) (“Dennis”).

32    The primary judge said at [37] of the reasons:

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.

(Emphasis added.)

33    The applicant’s submission is that in this passage, the primary judge decided that each of paragraphs (a), (b) and (c) of r 20.14(2) must be satisfied in order to establish the direct relevance of the documents sought.

34    The primary judge stated r 20.14(2) required “in this case” that the documents fall within (a), (b) and (c). Read in context, his Honour was reciting the factors which might apply in the circumstances of the case to make the documents sought directly relevant, rather than stating that each of the paragraphs in r 20.14(2) must be satisfied.

35    The primary judge’s references to (a), (b) and (c) appear to be a numbering system (ie (i), (ii) and (iii)). They do not appear to be direct references to paragraphs (a), (b) and (c) of r 20.14(2). This is supported by the fact that the factors numbered (a) to (c), described in his Honour’s reasons do not correspond to the numbering of the subparagraphs (a) to (c) in r 20.14(2). To illustrate:

    Rule 20.14(2)(a) refers to the documents “on which the party intends to rely”. The factor numbered (a) in the primary judge’s reasons refers to documents “on which the Minister intends to rely”.

    Rule 20.14(2)(b) refers to the documents which “adversely affect the party’s own case”. The factor numbered (b) in the primary judge’s reasons refers to documents which “adversely affect the Minister’s case”.

    Rule 20.14(2)(c) refers to the documents which “support another party’s case”. The factor numbered (c) in the primary judge’s reasons refers to documents which “support Mr Mentink’s case”.

36    While the applicant’s first proposed ground is arguable, on a fair reading of the reasons, his Honour did not interpret r 20.14(2) as requiring the applicant to demonstrate direct relevance by satisfying more than one of paragraphs (a) to (c). In any event, the difficulty for the applicant, one which pervades the proposed appeal, is that he has simply been unable to demonstrate the relevance of any of the documents he seeks to the grounds of his application for judicial review. In that circumstance, the appellate court would not make the order for discovery which the applicant seeks or remit the matter to the primary judge, and the appeal would fail.

Ground 2

37    In the second proposed ground of appeal, the applicant alleges that the primary judge wrongly adverted to r 20.14 and the requirement of direct relevance. The ground also seems to assert that the party against whom an order for discovery is sought has the onus of showing that the documents are not directly relevant.

38    The applicant’s application for discovery was based on r 20.21. Rule 20.21 is not a substitute for general discovery, but rather a rule for discovery of particular documents. An application for particular discovery should generally only be made following either an order for standard or non-standard discovery: Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd (2014) 232 FCR 560 at [99] (Flick J) (“CFMEU v Rio Tinto”); Dennis at [37] and [39].

39    It is not clear whether the applicant is suggesting that his application is an exception to the general rule. The basis for such an argument has not been elucidated in his written submissions, nor is it self-evident.

40    Having noted that the applicant’s application should be dismissed because it was brought under the wrong rule, the primary judge went on to consider the application as if it had relied on r 20.14. The primary judge took that course in fairness to the applicant, presumably because he was self-represented and could not be expected to have a thorough understanding of the Federal Court Rules. There was no detriment to the applicant, nor is there any arguable error, in the course taken by the primary judge.

41    As to the onus of proof, his Honour concluded that, “Mr Mentink has failed to establish the direct relevance of any of the seven categories of document to the review application”. It is well established that the party seeking discovery bears the onus of satisfying the Court that discovery the documents sought is necessary: Trade Practices Commission v CC (New South Wales) Pty Ltd (No 4) (1995) 58 FCR 426 at 436 (Lindgren J); CFMEU v Rio Tinto at [92]. The onus was on the applicant. There was no error by the primary judge.

Ground 3

42    The third proposed ground of appeal alleges that the learned judge wrongly distinguished between the applicant’s judicial review application and a fresh trial of ACLEI corruption issues.

43    The primary judge held:

[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…

…

[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…

44    The primary judge differentiated the application for judicial review from a hypothetical trial of ACLEI corruption issues. An application for judicial review requires demonstration of an error of law. The court does not inquire into the merits of the subject-matter of the decision. A trial of the corruption issues would consider the merits of those issues. His Honour considered that while the documents might be relevant to such a trial, they are not directly relevant to the application for judicial review. There was no error in his Honour’s analysis.

45    The third proposed ground goes on to assert that a core issue in the application for judicial review is whether an ACLEI corruption issue was raised by information available to the respondent. It asserts that several of the grounds for judicial review allege that the respondent exceeded his powers by requiring that the information before him must demonstrate corrupt conduct in the ACLEI. This seems to be an argument that the Minister misconstrued s 156(2)(c) of the LEIC Act as requiring that he be satisfied that there was corruption, rather than that there was a corruption issue, before he could refer the corruption issue for investigation or authorise a person to conduct a special investigation.

46    The construction of s 156(2) of the LEIC Act will depend on the terms of the provision, the statutory context and any extrinsic material that is permitted to be considered under s 15AB of the Acts Interpretation Act 1901 (Cth). The documents sought by the applicant cannot bear upon the construction of the provision and, therefore, are not relevant to that issue: see Attorney-General (Northern Territory) v Minster for Aboriginal Affairs (1989) 23 FCR 536 at 540 (Lockhart J).

47    The proposed third ground raises a further question:

[Does the LEIC Act] confer upon the Minister discretion to take no action in respect of those corruption issues given that the Act confers no responsibility on any other person to satisfy the objects of the Act?

48    This question also involves construction of the LEIC Act. The merit of the applicant’s argument is doubtful as s 156(2)(c) of the LEIC Act expressly states that the Minister “may…decide to take no further action in relation to the ACLEI corruption issue”. In any event, the documents sought by the applicant cannot be relevant to the question of construction raised by the ground.

Ground 4

49    The fourth proposed ground of appeal is concerned with the documents in category (7). This was the sole category of documents which the primary judge conclusively determined to be within the control of the Minister. The applicant alleges that the primary judge erred in declining to order discovery of these documents on the basis of lack of relevance under r 20.14 and because discovery would not facilitate the just resolution of the proceedings under r 20.11.

50    His Honour addressed the relevance of the category (7) documents:

[41]    In relation to the documents in category (7)… 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…

[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.

51    There is no apparent error in the primary judge’s assessment of the documents in category (7). As the documents were not shown to be directly relevant, the making an order for discovery would not have facilitated the just resolution of the proceeding as quickly, inexpensively and efficiently as possible.

Ground 5

52    The fifth proposed ground alleges that the primary judge’s “assessment of relevance in exercising his discretion to make no orders for discovery was so unreasonable that no reasonable person could have so exercised the discretion”.

53    This ground is not particularised and, without more, appears to be a general expression of disagreement with the exercise of the primary judge’s discretion. His Honour’s reasons clearly explain why the documents sought were not demonstrated to be directly relevant to the grounds of the application for judicial review. His Honour articulated relevant, rational and cogent reasons for the exercise of the Court’s discretion against ordering discovery of the documents sought. This ground has no realistic prospect of success.

Grounds 6 and 9

54    The sixth proposed ground of appeal alleges that the primary judge failed to distinguish between the object of discovery and object of production. This ground of appeal substantially overlaps with the ninth proposed ground, being that the primary judge erred in confusing the process of discovery with the process of production. These grounds will be dealt with together.

55    I understand the grounds to take issue with his Honour’s refusal to exercise the discretion to order discovery because of the likelihood that non-parties, the ACLEI and AFP, would wish to resist production of documents in their control.

56    A strict distinction between the objectives and processes of discovery and production is artificial. The two are interrelated and there may be no point in a judge exercising his or her discretion to order discovery if strong grounds exist for resisting production.

57    However, the primary judge reached no conclusions on this point, and his comments were only with respect to the desirability of the non-parties having an opportunity to make submissions. There is no discernible basis for the applicant’s assertion that the primary judge confused discovery and production.

Grounds 7 and 10

58    The seventh proposed ground, concerning the affidavit of the departmental officer, substantially overlaps with ground 10. These will be dealt with together. The principal allegation is that the primary judge wrongly characterized and relied on the affidavit as satisfying r 20.21.

59    Under r 20.21, the Court has a discretion to order that a party file an affidavit stating whether a document, or a category of documents, is or has been in the control of the party. In exercising the discretion, both the benefit to be gained from making an order, and the costs to be incurred if an order were to be made, are relevant: Slick v Westpac Banking Corp (No 2) [2006] FCA 1712 at [43] (Jacobson J); Austal Ships Pty Ltd v Incat Australia Pty Ltd [2009] FCA 368 at [154] (McKerracher J).

60    The departmental officer deposed that the respondent has never had possession or custody of any of the documents except those in category (7). The primary judge accepted that the affidavit satisfied the requirements of r 20.21 on the basis that it “deposes to facts from which a person could determine whether the Minister has control over the documents sought”. There would have been no useful purpose in the primary judge ordering that a further affidavit be provided. No arguable case of error has been demonstrated in relation to his Honour’s exercise of the discretion under r 20.21.

61    This ground of appeal is further particularised in the tenth proposed ground. The applicant alleges that the primary judge wrongly characterised the affidavit as satisfying the requirements of r 20.21 as:

(a)    an affidavit complying with r 20.17;

(b)    the fruit of any discovery order, in accordance with r 20.12;

(c)    a conclusive legal opinion or facts sufficient to ground a ruling of law.

62    It is not clear what the applicant’s complaints are. I cannot see how r 20.17, which deals with the requirements of a list of documents, is relevant to the form of an affidavit under r 20.21.

63    Rule 20.12 provides that a party must not give discovery unless the Court has made an order for discovery and if a party gives discovery without being ordered by the Court, the party is not entitled to any costs or disbursements for the discovery. I cannot see how that rule is relevant to the demonstration of any error on the part of the primary judge.

64    The primary judge did not characterise the affidavit as “a conclusive legal opinion or facts”. His Honour merely concluded that the affidavit satisfied the requirements of r 20.21.

65    In addition to the above particulars, the applicant submits that the primary judge:

…should have heard the r20.21 application as if the affidavit never existed and made a conclusive determination of the question of the Minister’s power, that being the primary basis upon which the Minister should have opposed orders. There is simply no basis for assuming that the stricter r20.14 direct relevance test intended to curb unnecessary search and discovery should apply to particular documents sought under r20.21.

(Original emphasis.)

66    Firstly, as discussed above, there was no error in the exercise of the primary judge’s discretion under r 20.21. Secondly, his Honour did not apply the direct relevance test to r 20.21. The primary judge first held that no order should be made under r 20.21, then proceeded to consider the application as if it were made under r 20.14. Thirdly, his Honour’s decision to not reach a conclusion on the issue of control in the absence of submissions from the ACLEI and the AFP was a sensible and appropriate approach.

Ground 8

67    The applicant alleges that the primary judge erred in concluding that discovery should not be ordered because none of the documents sought were amongst the documents said to be before the Minister and, therefore, were not taken into account in the making of the decision. The applicant particularises this ground of appeal as follows:

a.     While as a general principle in common law judicial review of an administrative decision is confined to the reasons provided and the declared documents, it is also common law that there may be exceptional circumstances in which further documents may be discovered and produced;

b.     The documents sought to be discovered had been repeatedly referred to the Minister as being pertinent to the issues raised by the applicant and were on the same footing as the information the applicant provided, albeit not yet with the benefit of the appellant’s analysis which would require discovery;

c.     In the present matter ADJR Act 1977 s13 reasons were sought and not provided.

68    In Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 Weinberg J stated at [442]:

Ordinarily, there would be no reason, in a case involving judicial review, for any evidence to be placed before the court, apart from evidence of what was before the decision-maker at the time of the relevant decision.

However, the touchstone of admissibility is relevance to the specific grounds of review and the facts of the case: Chandra v Webber (2010) 187 FCR 31 at [40] (Bromberg J); Attorney-General (NT) v Minister for Aboriginal Affairs at 539-40.

69    The ordinary rule against receiving extrinsic evidence is a consequence of the nature of the Court’s jurisdiction and role in conducting judicial review of an administrative decision. Whether or not there is an error of law is ordinarily discerned from the reasons of the decision-maker, which are based on the material before that decision-maker. The question before the primary judge hearing the substantive application for judicial review is rarely whether the Minister would have come to a different conclusion if he or she had considered different evidence. This is why additional material is not usually relevant in determining whether the decision-maker erred in law: see Waterford v Commonwealth (1987) 163 CLR 54 at 77-78 (Brennan J).

70    There are some exceptions. For example, material that was not before the decision-maker may be relevant to a ground of unreasonableness where the decision-maker has not obtained material that was obviously centrally relevant to the decision and was readily available: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 (Wilcox J).

71    It was common ground between the parties before the primary judge that none of the documents sought to be discovered by the applicant were before the Minister. It is on that basis, together with the applicant’s failure to demonstrate the direct relevance of the additional documents sought, that the primary judge declined to order discovery under r 20.14.

72    With respect to particular (a), the applicant asserts that his case falls within an exception to the general rule. These exceptions require demonstration of the relevance of the documents to the specific grounds of review. The applicant’s written submissions fail to address the issue of how the documents he seeks are directly relevant, or even indirectly relevant, to his grounds of review. Having regard to the submissions, the application for judicial review and the applicant’s affidavits in support of his grounds, I can see no error in the primary judge’s reasons on this point.

73    For these reasons, particular (b), which argues that the documents that were not before the Minister are “on the same footing” as the documents before the Minister, must also be rejected.

74    With respect to particular (c), the applicant argues that where no formal statement of reasons is provided, the ordinary rule against the reception of extrinsic evidence does not apply. The applicant cites Moreland City Council v Minister for Planning [2014] VSC 468 where it was held that, in that case, the provision of reasons for a decision weighed against the making of any order for discovery. The provision of reasons may be relevant to the exercise of the Court’s discretion to order discovery, but the question of whether to order discovery remains within the sole discretion of the Court: Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257 at 265 (Bowen CJ, Lockhart and Sheppard JJ); Australian Securities Commission v Somerville (1994) 51 FCR 38 at 48-49 (Black CJ, Ryan and Olney JJ).

75    Where no reasons are provided, it is permissible to look behind the decision to the material before the decision-maker in an attempt to discern the reasons for the decision: East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605 at [312] (Ashley and Redlich JJA). However, the fundamental difficulty for the applicant is his inability to demonstrate how documents not before the Minister might be directly relevant, or even relevant at all, to the grounds of his application for review. Pointing to the absence of reasons does not overcome this difficulty.

Ground of Appeal 11

76    The final proposed ground of appeal asserts that the primary judge failed to give proper weight to the objects of the LEIC Act and the nature of the matter, namely issues of corruption. This ground appears to be a general disagreement with the exercise of the primary judge’s discretion, rather than assertion of error of the kind that would result in an appellate court allowing an appeal against the exercise of a discretion: see House v R (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ).

Another matter

77    Despite a principal consideration in the primary judge’s decision being an order for discovery of documents in the possession of non-parties should not be made without the non-parties being given an opportunity to make submissions, this issue is not explicitly addressed in the applicant’s proposed grounds of appeal. Even if the applicant could succeed in demonstrating error by the primary judge on the basis of any of his proposed grounds, there is no challenge to this aspect of his Honour’s reasons. The appeal is unlikely to succeed for that reason alone.

78    In summary, the applicant has not demonstrated that the judgment is attended by sufficient doubt to warrant reconsideration by an appellate court.

Whether substantial injustice would result if leave were refused

79    There are no persuasive considerations that lend themselves towards establishing substantial injustice.

80    Contrary to the applicant’s assertion, his proposed grounds of appeal do not raise “general questions of importance” concerning the discovery rules. Further, the dismissal of the application will not result in the “perverting of the course of justice” with respect to “corruption in the form of systemic abuse of power” and “failure of government accountability”. The applicant’s substantive rights are not affected by the failure of his application for discovery.

81    In the absence of sufficient doubt attending the interlocutory judgment, and in light of the fact that the judgment concerns a matter of practice or procedure, I am not satisfied that substantial injustice is likely to result if leave were refused, supposing the decision to be wrong.

82    The application for leave to appeal will be dismissed with costs.

Associate:

Dated:    29 April 2016