FEDERAL COURT OF AUSTRALIA

Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 3) [2018] FCA 1540

ORDERS

THE COURT ORDERS THAT:

1.    The relief sought in sub-paragraphs 1(d) and (e) of the application filed on 16 August 2018 be dismissed.

2.    The remainder of the application is adjourned to 10.15am on 31 October 2018 for further hearing.

3.    Costs reserved.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    This is an application by Fastbet Investments Pty Ltd (Fastbet) for discovery against the Commissioner of Taxation in judicial review proceedings which it has commenced. These reasons relate only to what has become the first contentious issue in the application. Fastbet’s interlocutory application was listed for hearing on 11 September 2018, however, the time allocated for it expired and argument on the remaining issues has been adjourned to a later date.

History

2    It is not necessary to set out at any length the history of this matter but it is appropriate to recognise the not insignificant history of non-compliance by Fastbet with various directions made by this Court. There is no need to specify all of those delinquencies but they are identified in the Chronology of Events which is annexed to the Commissioner’s outline. In light of that history the Commissioner submits that the present application is a tactical one by which Fastbet seeks to further delay the proceedings. There is some force in that submission which Fastbet’s conduct in these proceedings to date has nothing to dispel.

3    By the Originating Application Fastbet seeks to review the decision of a delegate of the Commissioner of Taxation to issue to it a Notice under s 255-100 of Schedule 1 of the Tax Administration Act 1953 (Cth). Such a notice requires the recipient to provide security to the Commissioner for the due payment of, inter alia, “future tax-related liabilities” and is sometimes referred to as a “Security Bond Demand” (SBD).

4    Ms Tina Bazzo (Ms Bazzo) is the current sole director of Fastbet and she and companies associated with her have numerous extant disputes with the Commissioner. This is one of them.

5    As is set out in the Originating Application some of the circumstances relied upon by the Commissioner for the issue of the SBD to Fastbet were identified as being:

(a)    That Ms Bazzo had been non-compliant in respect of her personal tax obligations, owing more than $13,869,620 in personal taxation to the Commissioner.

(b)    Ms Bazzo is currently being prosecuted in respect of two alleged taxation offences.

(c)    Ms Bazzo is a director of several other companies which have failed to comply with various tax obligations.

(d)    That in relation to one of those companies, GH1 Pty Ltd (GH1), Ms Bazzo caused the company to sell its property to a third party and permitted approximately $3.35 million of the proceeds to be paid to a third entity controlled by Ms Bazzo.

(e)    That there were a number of financial dealings in the operation of GH1 by Ms Bazzo which gave rise to significant concern.

(f)    That GH1 was placed in liquidation on 22 May 2017, and the Commissioner lodged a proof of debt in the amount of $73,669,171.09 for unpaid tax liabilities.

(g)    Ms Bazzo is a director of more than a dozen other companies which collectively have more than 20 outstanding income tax returns or business activity statements.

6    None of the above factual matters relied upon by the Commissioner’s delegate are disputed by Fastbet in these proceedings.

7    The Commissioner issued the notice under s 255-100 of Sch 1 of the Tax Administration Act. The s 255-100 Notice specified the Commissioner required the giving of mortgages over 18 parcels of land which were listed in the notice by their real property description. One of the many issues raised by Fastbet in these proceedings is that, although the titles to the parcels of land were checked by the Australian Tax Office (ATO) on the day the notice was issued, by the time of issue some dealings were lodged on two of the titles. It claims that the issue of the notice became invalid because it required the provision of security over property which it no longer owned.

8    Section 255-100 provides as follows:

SECTION 255-100 COMMISSIONER MAY REQUIRE SECURITY DEPOSIT

(1) The Commissioner may require you to give security for the due payment of an existing or future *tax-related liability of yours if:

(a)    the Commissioner has reason to believe that:

(i)    you are establishing or *carrying on an *enterprise in Australia and

(ii)    you intend to carry on that enterprise for a limited time only; or

(b)     the Commissioner reasonably believes that the requirement is otherwise appropriate, having regard to all relevant circumstances.

Note: A requirement to give security under this section is not a tax-related liability. As such, the collection and recovery provisions in this Part do not apply to it.

(2) The Commissioner may require you to give security:

(a)     by way of a bond or deposit (including by way of payments in instalments); or

(b)     by any other means that the Commissioner reasonably believes is appropriate.

(3) The Commissioner may require you to give security under this section:

(a)     at any time the Commissioner reasonably believes is appropriate; and

(b)     as often as the Commissioner reasonably believes is appropriate.

Example:

The Commissioner may require additional security if he or she reasonably believes that the original security requirement underestimated the amount of the likely tax-related liability.

9    It is also necessary to consider other complementary sections which provide:

SECTION 255-105 NOTICE OF REQUIREMENT TO GIVE SECURITY

Commissioner must give notice of requirement to give security

(1) If the Commissioner requires you to give security under section 255-100, he or she must give you written notice of the requirement.

Content of notice

(2) The notice must:

(a)     state that you are required to give the security to the Commissioner; and

(b)     explain why the Commissioner requires the security; and

(c)     set out the amount of the security; and

(d)     describe the means by which you are required to give the security under subsection 255-100(2); and

(e)     specify the time by which you are required to give the security; and

(f)     explain how you may have the Commissioner’s decision to require you to give the security reviewed.

…

SECTION 255-110 OFFENCE

You commit an offence if:

(a)    the Commissioner requires you to give security under section 255-100; and

(b)    you fail to give that security as required.

Penalty: 100 penalty units.

10    The operation of s 255-100 was recently considered by the Full Court of this Court in Keris Pty Ltd v Deputy Commissioner of Taxation (2017) 253 FCR 233 (Greenwood, McKerracher and Moshinsky JJ) (Keris). That decision concerned the issuing of a notice to the company, Keris Pty Ltd, which, coincidently, is another of Ms Bazzo’s companies. The Full Court essayed the operation of the section at [90]–[94]. It is worth setting out that portion of the reasons in full:

[90] However, s 255-100(1) confers a discretionary power upon the Commissioner to require the addressee to give security for the due payment of a tax-related liability which the Parliament, by the use of the defined phrase “*tax-related liability”, must, as a matter of construction, be taken to have intended to be capable of exercise, in the relevant circumstances, in a way which engages each tax-related liability falling within the scope of the defined term subject to the role and effect of the qualifying descriptive language “existing” and “future”.

[91] Section 255-100 contemplates two states. The first is an existing tax-related liability of yours and the second is a future tax-related liability of yours. An existing tax-related liability is that state in which, at the time of the exercise of the power, a presently existing pecuniary liability to the Commonwealth arises directly under a taxation law including a liability the amount of which is not yet due and payable to the Commonwealth (Commissioner). A presently existing pecuniary liability to the Commonwealth arises, although the amount of it may not be due and payable, once the Commissioner has made an assessment or is taken to have made an assessment and notice of it has been given to the addressee or notice is taken to have been given to the addressee.

[92] A future tax-related liability is that state in which, at the time of the exercise of the power, a tax-related liability does not presently exist. The statutory term looks to future events and postulates the possibility (at the time of the exercise of the power by the Commissioner, standing in the present), of a pecuniary liability to the Commonwealth arising directly, in the future, under a taxation law.

[93] There is nothing in the text of the term “future *tax-related liability of yours” which suggests that the discretionary power conferred on the Commissioner to require the addressee to give security for the due payment of a future tax-related liability is conditioned upon facts (taxable facts) having occurred at the time of the exercise of the power upon which the Commissioner could then act to make and notify an objectively correct quantification of the amount of the future tax-related liability.

[94] The statutory factors upon which the exercise of the conferred power rests, suggest no such requirement. The Commissioner may exercise the power if he or she has reason to believe the addressee is “establishing” an enterprise or, having regard to the definition of “carrying on” an enterprise (in s 995-1 of the 1997 Act for the purposes of s 255-100(1)(a)(i)), he or she has reason to believe the addressee is doing “anything in the course of commencement of an enterprise” (s 9-20, GST Act); and the Commissioner has reason to believe the addressee intends to carry on the enterprise for a “limited time only”. These terms “establishing” and doing “anything in the course of commencement” of an enterprise are inconsistent with a discretionary power to require security for the due payment of a future tax-related liability construed in such a way as to limit the subject matter of the exercise of the power to those future tax-related liabilities where the Commissioner can presently isolate, at the time of the exercise of the power, existing taxable facts having occurred (such as an existing sale of any one or more of 28 subdivisional lots) which, if then assessed, would give rise to a presently objectively correct amount of a future tax-related liability.

11    In the present case the decision maker apparently relied upon s 255-100(1)(b) in concluding it was appropriate to require the security in all the circumstances. In that respect, it is relevant that in Keris it was made clear that in ascertaining whether there was a future tax liability, the decision maker was not required to determine whether there would be an expected or anticipated liability. All that is required is the identification of facts which might occur in the future to give rise to pecuniary liability to the Commonwealth under the taxation laws.

The relevant grounds of review

12    Fastbet has set out a number of grounds of review in its Amended Originating Application. Ground three asserts that the Commissioner’s decision was not authorised by the enactment because, inter alia, the decision maker, Mr Burns, did not reasonably believe that the security was appropriate in the circumstances as he did not believe that Fastbet was the registered proprietor of each of the 18 lots listed in the notice. It was alternatively alleged that Mr Burns did not have regard to all the relevant circumstances being that the lots were not all registered in the name of the applicant. It is also alleged that Mr Burns did not have regard to the relevant circumstances that the applicant had carry forward tax losses which might negate any future tax liability. The claim is also put in the inverse by an allegation that the decision was an improper exercise of power because irrelevant considerations were taken into account.

13    Mr Burns made the determination on 19 September 2017 that the s 255-100 Notice ought to be issued to Fastbet. Subsequently, reasons were requested for the making of the decision and they were provided. The essence of Mr Burns’ deliberations’ relevant to the present matter are as follows:

In making my decision, I relied on the notification from the audit team that the net future tax liabilities of Fastbet Investments Pty Ltd as a result of the development and sale of approximately 570 blocks of land was expected to be $6,895,222. In my experience, the audit team’s calculations of likely net future tax liabilities tend to be a reliable, but conservative, estimate of net future tax liabilities. Given the number of anticipated lots, the expected net future tax liability equated to approximately $12,000 per lot, which appeared reasonable to me.

In making my decision to issue the Notice, I held the belief that there was a significant risk that Fastbet Investments Pty Ltd would not pay the $6,895,222 of tax-related liabilities which ATO auditors had estimated that Fastbet Investments Pty Ltd would incur from its property development activity.

This belief was based on my consideration of the non-compliance behaviour of Ms Bazzo and more than fifteen companies of which Ms Bazzo currently is (or previously had been) a director, evidence of which was outlined in the submission of Cong Nguyen, dated 19 September 2017.

Based on my belief that there was a significant risk that Fastbet Investments Pty Ltd would fail to pay the anticipated $6,895,222 of tax-related liabilities, I concluded that it was appropriate that I should seek to mitigate that risk by issuing the Notice to require the provision of $6,500,000 of security.

The grounds of the application

14    Fastbet’s submissions in support of the discovery application were somewhat diffuse. Eventually, it abandoned its application in relation to the documents identified in paragraphs 1(b) and (c) of its interlocutory application. Those documents related to the assessment of future tax liabilities. Mr Fickling for the applicant had asserted that these documents were relevant because they went to the assessment by Mr Burns of Fastbet’s future tax-related liability. However, it was clear that Mr Burns did not assess any such liability. It was assessed by officers in the audit team. As appears above, Mr Burns accepted that which had been identified being an assessment by the audit team of the likely tax liability and he gave reasons for why he did so. There is no suggestion Mr Burns delegated his decision making authority to any member of the audit team to calculate the amount. That being so the documents in paragraphs 1(b) and (c) in question were irrelevant.

15    In addition, as the decision in Keris discloses, there is no need for the Commissioner to make an assessment of any liability. All that is required is that there be facts which might give rise to a taxation liability. Here, Fastbet was in the process of developing land by the construction of apartments and selling them. In the ordinary course of events, that is an activity which is likely to give rise to a taxation liability. In the very least, it is likely to give rise to an obligation to pay GST on the supply of the units.

Documents concerning ownership of land

16    The second category of documents sought by Fastbet concerned those in the possession of the Commissioner relating to Fastbet’s interests in the parcels of land specified in the notice.

17    The documents Fastbet seeks under this heading are:

d.    Ownership of land on 19 September 2017 – documents. With reference to the titles to land held by the Applicant on 19 September 2017, all Documents (including any emails, letters, notes, file notes, SMS messages and documents) constituting, recording, evidencing or otherwise relating to the ascertainment of the land owned legally or beneficially, and or transferred to or from, the Applicant by the Respondent on or around 19 September 2017.

e.    Ownership of land on 19 September 2017 – communication documents. With reference communications as to the titles to land held by the Applicant between Mr Ross Burns, Mr Cong Nguyen, Mr Timothy Hughes, Mr Peter Irvin, Mr Michael Crawshaw and any other relevant officer in the office of the Respondent, all written communications (including emails, SMS messages and MOC messages and logs of such messages) howsoever relating to the titles to land held by the Applicant on 19 September 2017, all Documents constituting, recording, evidencing or otherwise relating to the ascertainment of the land owned legally or beneficially, and or transferred to or from, the Applicant by the Respondent on or around 19 September 2017.

General principles relating to discovery in judicial review proceedings

18    The general principles applicable to the granting of discovery in actions for judicial review were referred to the decision of the Full Court in Jilani v Wilhelm (2005) 148 FCR 255 where it was held that “it is not open to an applicant to make a bare allegation that a decision was made without any basis and then use the process of discovery to find out if the allegation has foundation” (at [111]). Their Honours said (at [112]):

There must be sufficient definition of the issues to enable the Court to see that the documents sought on discovery relate to a live issue; there must at least be something from which the Court can see that there is a real issue the proof of which would be assisted by discovery; Nestle at 83; Murchison v Keating at 344-345.

19    Earlier in their reasons their Honours cited with approval the principles summarised by Merkel J in Carmody v MacKellar (1996) 68 FCR 265 at 280, which are as follows:

The following principles may now be taken to be well established by the decisions of the Court in Melbourne Home of Ford v Trade Practices Commission (1979) 36 FLR 450, W.A. Pines Pty Ltd v Bannerman (1980) 41 FLR 175 and Australian Securities Commission v Somerville (1994) 51 FCR 38.

•    the Court has a discretionary power to order discovery in proceedings for the review of an administrative decision;

•    the proper exercise of the power depends upon the nature of the case and the stage of the proceedings at which discovery is sought;

•    if a proceeding or claims in it are essentially speculative in nature the Court will not order discovery in order to assist the applicant in a fishing exercise;

•    the evidence or material which will be required to establish that the proceeding or particular claims in it are not essentially speculative will vary with the nature and circumstances of the particular case;

•    if there is not the slightest evidence or there is no other material to support the bare allegations made in the proceeding, then as a general rule, an order for discovery ought not to be made.

Nature of case and state of the proceedings

20    The action is, as identified above, an application for judicial review. It is brought pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Judiciary Act 1903 (Cth), although there is a degree of commonality with respect to the grounds advanced under each. It must be kept in mind that judicial review does not entail a merits review. The delegate, Mr Burns, has given written reasons for his decision pursuant to a request made under s 13 of the ADJR Act. In the ordinary course, the validity of his decision would stand or fall on the legality of the decision making process as evidenced by those reasons.

21    The relevant grounds relied upon by Fastbet concerns Mr Burns’ consideration of the ownership of the allotments in respect of which security was required. The gravamen of the complaint is that the SBD required Fastbet to provide mortgage security over real property, the title to which had passed from it by the time the notice was issued. The notice to give security which was sent on 19 September 2017, required the applicant to execute a mortgage over “all real estate registered in the name of the company and set out above”. The reference to “set out above” is a reference to the 18 parcels of land identified in the notice by their real property descriptions.

22    Fastbet has already secured from the Commissioner the production of a substantial amount of material by making applications under the Freedom of Information Act 1982 (Cth). Some of what has been obtained to date, has been placed before the Court for the purposes of this application. That material discloses that on 19 September 2017, and between the time in which the submission to Mr Burns to issue the s 255-100 Notice (the SBD Submission) was delivered to him and the time of the issuing of the SBD, some dealings occurred with respect to two of the parcels of land which were referred to in the SBD Submission and subsequently specified in the s 255-100 Notice. The person preparing the SBD Submission had searched the Land Titles Register earlier that day and ascertained the titles to the 18 parcels revealed Fastbet was the owner. The dealings were apparently entered on the register after the search occurred. The result was that the s 255-100 Notice required the giving of security to the Commissioner by way of a mortgage over the 18 parcels of land even though dealings had been lodged on two of the titles.

23    Although it is not necessary to decide, it may well be that, properly construed, all that the s 255-100 Notice required was that Fastbet give mortgages over its interests in the identified parcels of land. If, at the time the notice issued, one of those parcels had been sold and the purchase price paid such that Fastbet held the title as bare trustee, the obligation would be to grant the mortgage over whatever interest was held. It may be a slightly unusual construction of the SBD for it to require the giving of security over an interest in land which Fastbet did not have. That may or may not be an issue which needs to be considered later in the proceedings and can only be decided when, and if, it arises.

24    More specifically Fastbet’s real complaint is that, in determining to issue the s 255-100 Notice, Mr Burns did not take into account the fact that there were dealings entered on the titles to the land when the decision to issue it was made or, alternatively, the decision maker did not reasonably believe that there were none: see grounds 3.2 and 4.2. The difficulty for the applicant here is that the SBD submissions to Mr Burns and Mr Burns’ reasons show that he had taken steps to ascertain the ownership of land held by Fastbet. He had caused a search to be undertaken on the morning on which the notice was issued and he was informed of the results by the terms of the SBD submission. That submission was in evidence on the application and shows that Mr Burns was informed that Fastbet “currently holds land titles for the following lots” and the 18 lots were included in those listed.

25    It may be that the thrust of the applicant’s argument is that somehow Mr Burns was aware that, in the period between when the searches were done in the morning of 19 September 2017 and the time of the issuing of the notice later that day, dealings were entered on the titles of some of the lots but he issued the notice anyway. Certainly, during the course of submissions, this was the general nature of the complaint which was seemingly advanced by Mr Fickling for Fastbet. Apart from anything else, there is not a skerrick of evidence which would suggest that allegation is true. Those documents obtained under the Freedom of Information Act include emails between Mr Burns and various other ATO officers in relation to the circumstances arising prior to the issuing of the notice and, in particular, in relation to the identification of assets owned by Fastbet. There is nothing to suggest that Mr Burns was in any way aware of the intervening dealings on the land. Indeed, the emails which have been disclosed suggest that knowledge of the transfers lodged on the titles to the two parcels of land were only discovered some three days after the notice was issued.

26    The allegations in the Originating Application on this topic are no more than mere assertions and, on the basis of the large amount of material presently available, they have no foundation in fact. The suggestion that Mr Burns exercised his power to issue the SBD over the two parcels of land in respect of which he knew transfers had been lodged is nothing more than fevered speculation by those representing Fastbet. That is insufficient in judicial review proceedings to warrant the making of orders for discovery. In addition, the material which has been identified above tends towards the conclusion that Mr Burns relied upon what he was told in the SBD Submission about Fastbet’s ownership of the parcels of land and that information about the transfers which were lodged on 19 September only came to light a few days afterwards. Not only is the allegation about Mr Burns speculation, it is seemingly contrary to the information presently in the hands of Fastbet’s legal advisers.

27    These proceedings have been on foot since 17 October 2017. It is axiomatic that judicial review proceedings ought be dealt with expeditiously, but here Fastbet has failed to pursue the matter with any degree of expedition. Indeed, much of its litigious activity appears to be directed towards delaying a final determination. It has issued s 78B Notices under the Judiciary Act 1903 (Cth), issued at least four Notices to Admit directed to the Commissioner and made three requests for subpoenas duces ticum to be issued to the Commissioner as well as this application for discovery. Putting aside these actions by Fastbet, the matter is otherwise generally ready to be set down for hearing with the parties having filed their affidavits for the purposes of the main hearing and objections to evidence have been notified.

28    Given the fact that this is an application for judicial review and that the matter is otherwise all but ready for a hearing, one would expect good reasons to be advanced as to why discovery ought to be made at this stage. None have been provided.

Whether the claims are speculative or not?

29    In seeking the documents relating to what Mr Burns may or may not have known about dealings on the title of land owned by Fastbet on 19 September 2017, Fastbet, by its Counsel, all but admitted it did not know what had happened. Mr Fickling submitted (at TS-86):

And so the question in – clearly something did go very wrong in issuing a security bond demand over property that had already been sold. But the question is – and their discovery as sought is to understand what really did the respondent know at the time because this ought not to have happened if real time alerts were being received and appropriately forwarded on to Mr Burns.

30    He subsequently acknowledged that it was mere speculation on his part that such information was being forwarded to Mr Burns. Later he said (at TS-89):

So we cannot particularise what the actual knowledge inside the office of the respondent or indeed Mr Burns at the time of issuing the security bond demand, but what we can say is that that property was subject to dealing.

31    These submissions disclose the application for discovery is truly a “fishing” exercise. There is nothing in the vast amount of material filed to suggest that Mr Burns was aware of the fact that in the period between 9.30am on the morning of 19 September 2017 and several hours later when he made the decision, dealings with respect to the parcels had taken place and had been notified on the title. Moreover, there is nothing in the reasons provided for the decision that suggests Mr Burns knew that such events existed. The fishing nature of the application, of itself, warrants the rejection of discovery in this respect.

32    The characterisation of the application for discovery by the Commissioner as a “fishing expedition”, is given greater veracity by the submission made on behalf of Fastbet that, once discovery is complete, it is likely to seek to amend the Originating Application. The nature of the proposed amendments were not identified and it can only be assumed that Fastbet is seeking to find some new ground in the material which it might receive if an order for discovery is made.

No evidence to support claims

33    As mentioned, the applicant has had the benefit of receiving a large amount of material from the Commissioner’s office through Freedom of Information Act applications. Those documents include emails between the various persons who were active in the preparation of the submission to Mr Burns and Mr Burns himself. There is not the slightest scintilla of a suggestion that, prior to the making of the decision, Mr Burns was aware of the intervening dealings. Indeed, the evidence is entirely to the contrary as it reveals that after the decision was made, the officers of the ATO discovered the existence of dealings on the title and undertook action to ascertain what had occurred.

34    The fact that the evidence tends to disprove any suggestion that Mr Burns, or anyone in his office, was aware of the intervening transactions shows there is no support for the bare allegations made in the application.

Discovery should not be ordered

35    The above considerations all weigh heavily against the exercise of the Court’s discretion to make an order for discovery in relation to the documents pertaining to Mr Burns’ knowledge of the dealings which took place with respect to the parcels of land of which Fastbet was the registered proprietor. A consideration of the criteria referred to by Merkel J in Carmody v MacKellar leads inexorably to the conclusion that Fastbet has failed to establish any basis to warrant the exercise of discretion in its favour.

Additional reason for refusing discovery

36    In opposition to the application the Commissioner relied upon Fastbet’s failure to comply with r 20.11 of the Federal Court Rules which provides 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”. Counsel for the Commissioner submitted that much has occurred in the course of this action before Fastbet made its discovery application, including the amendment of the Originating Application on two occasions and the request has come at a late stage. There is much force in that submission and, particularly so, given Fastbet’s indication that it hopes to further amend the Originating Application on the completion of discovery. The Commissioner’s submission that Fastbet has made no attempt to establish how the application for the order for discovery might meet the objectives set out in r 20.11, is also not unfair or inaccurate.

37    The Commissioner further submitted that in making the discovery application, Fastbet ignored cl 10.5 of the Central Practice Note pertaining to discovery. In particular, reference was made to the expectation of the Court that an applicant will have discussed the issue of discovery with the other party and, if possible, have agreed upon a protocol. Here, no attempt was made to discuss the issue of discovery with the Commissioner’s legal advisers. The first time they became aware of Fastbet’s desire for discovery was when the application for discovery was served and the first time Fastbet articulated why it claimed discovery was needed or what the relevant issues in dispute were, was when it provided its submissions for the purposes of the application.

38    At first blush it might be thought that reliance on the failure to comply with the Central Practice Note was somewhat technical. However, on reflection, the point is not without substance. The Practice Note exists for a very good reason, being to ameliorate the cost and wasted time involved in applications of this nature. It has been prepared with a view to ensuring applications of this type do not occur needlessly, or that, if they proceed, they will be dealt with efficiently. No explanation was provided by Fastbet for its failure to comply with the Practice Note.

39    Even if there were some merit in the application for discovery, it would undermine the purpose and effect of the Practice Note were Fastbet to be permitted to avoid compliance with it in this case where its prosecution of its action has been dilatory to say the least. Its failure to comply with these requirements is another reason why an order for discovery should be refused in relation to the documents identified in paragraph 1(d) and (e) of the application.

40    The respondent makes the further submission that this application cannot expeditiously advance this matter. Again, there is some force in that submission. The documents sought by Fastbet are the unredacted versions of the documents provided under the Freedom of Information Act. However, it would have been pellucidly clear to any reasonable practitioner that the redactions made by the Commissioner related to claims for public interest immunity or legal professional privilege. Even if an order for discovery were made, those claims would still need to be resolved. The failure of the applicant to attempt to advance this issue with the Commissioner prior to making the application is, in the circumstances, a serious error which would warrant the refusal of the application.

Conclusion

41    It follows that the application for discovery in respect of the documents identified in paragraphs 1(d) and (e) is refused.

Further hearing

42    The hearing of the application had to be adjourned as a result of the expiration of time. Counsel was not available on the following day. The remainder of the application has been set down for further hearing on 31 October 2018 at 10.15am.

Associate:

Dated:    15 October 2018