Alex Fraser Pty Ltd v Minister for Planning [2018] VSC 391

1 By Notice of Appeal filed 7 May 2018, the appellant appeals against orders of the Associate Justice made on 18 April 2018 dismissing the appellant's application pursuant to r 32.05 of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules'). The appellant sought an order that the respondent make discovery of all documents relied on, or considered by, the respondent ('the Minister') in coming to his decision to approve ('the Approval') Amendment C143 of the Kingston Planning Scheme ('the Planning Scheme Amendment').

2 By planning permit KP881/07 dated 5 December 2008, the City of Kingston allowed the use and development of land at 293-315 Kingston Road, Clarinda ('the Site') for materials recycling in conjunction with a refuse transfer station for a maximum of 15 years' duration. Clause 8 of the permit provided that the Council of the City of Kingston ('the Council') may extend the permit if a request was made in writing not less than 3 years before the expiration of the permit.

3 On 27 August 2012, the Council adopted the recommendations of the Kingston Green Wedge Plan in relation to landfills, waste transfer and materials recycling; and to facilitate a transition to a proposed 'chain of parks' on the land subject to the plan, which included the Site.

4 Between 25 September and 27 October 2014, pursuant to s 19 of the Planning and Environment Act 1987, the Council exhibited the Planning Scheme Amendment in which it was proposed to rezone certain land, including the Site, from Special Use Zone Schedule 2 (Earth and Energy Resources Industry) to the Green Wedge A Zone. The appellant's uses would not be permitted under the Planning Scheme Amendment.

5 On 24 October 2014, the appellant made a submission to the Council objecting to the Planning Scheme Amendment.

6 On the same day, 24 October 2014, Contour Town Planners made an application on behalf of the appellant for Council to extend the end date of the permit from 2023 to the year 2038 ('the Extension Application').

7 On 24 November 2014, the Council resolved to request the Minister to appoint a panel under Part 8 of the Planning and Environment Act 1987 to consider submissions with respect to the Planning Scheme Amendment.

8 On 28 November 2014, the appellant's solicitors lodged an application to the Victorian Civil and Administrative Tribunal ('the VCAT application') to review the Council's failure to determine the Extension Application within the prescribed time, pursuant to s 149(1)(a) of the Planning and Environment Act.

9 On 2 December 2014, the Minister appointed a panel in accordance with Council's request ('the Panel').

10 On 16-20 and 25 February 2015, the Panel conducted a public hearing with respect to the Planning Scheme Amendment. The appellant was represented by counsel and called expert town planning evidence.

11 By a report dated 8 May 2015, the Panel made recommendations, relevantly, including recommendation 5 to the effect that the appellant's land should:

(a) be removed from the area to be rezoned to the Green Wedge A Zone; and

(b) retain the current zoning (Special Use Zone, Schedule 2).

12 By order made on 17 April 2015, the VCAT application was listed for a mediation on 20 August 2017 and, in the event that the mediation was unsuccessful, a final hearing commencing on 26 October 2015 for 4 days.

13 On 25 May 2015, the Council adopted the Planning Scheme Amendment without making the changes as recommended by the Panel; and resolved to submit the Planning Scheme Amendment to the Minister for approval.

14 On 27 May 2017, the Planning Scheme Amendment was submitted to the Minister for approval.

15 By letter dated 11 August 2015 to the Minister ('the 11 August 2015 letter'), the appellant made submissions about why the Planning Scheme Amendment should not be approved.

16 On 11 October 2015, the Minister approved the Planning Scheme Amendment pursuant to s 35 of the Planning and Environment Act.

17 On 15 October 2015, the Planning Scheme Amendment was gazetted and came into operation.

18 By letter dated 21 October 2015 to the solicitors for the appellant, the solicitors for the Council (in the VCAT application) advised that the Planning Scheme Amendment had been gazetted on 15 October 2015.

19 On 26 October 2015, after advice from senior counsel that the effect of the rezoning was to severely diminish its chances of a successful review, the appellant discontinued the VCAT application.

20 By letter dated 16 November 2015 to the Minister, the solicitors for the appellant requested all documents that were relied upon and considered when making the decision to approve the Planning Scheme Amendment 'so they could provide [their] client with advice regarding the approval of the Amendment'.

21 By letter dated 13 December 2015 to the solicitors for the appellant, the Minister enclosed the explanatory report and otherwise directed them to the Freedom of Information Unit.

22 By letter dated 5 January 2016 to the Freedom of Information Unit, the solicitors for the appellant requested the same information ('the FOI request'), as had been requested in the letter to the Minister dated 16 November 2015, pursuant to s 17 of the Freedom of Information Act 1982 ('the FOI Act').

23 By letter dated 15 March 2016 to the solicitors for the appellant, the Department of Environment, Land, Water and Planning ('the Department') stated that its decision was that the requested documents could be released in part subject to:

(a) exemption of four documents in full and parts of five documents as internal working documents within the meaning of s 30(1) of the FOI Act; and

(b) exemption of two documents in full and two documents in part on the basis of legal professional privilege pursuant to s 32(1) of the FOI Act.

24 By letter dated 30 March 2016 to the solicitors for the appellant, the Department enclosed a copy of the documents to be released pursuant to the FOI request. The documents released were as follows:

(a) Letter dated 12 December 2014 from the City of Kingston to the Acting Minister for Planning requesting that the Acting Minister intervene in the VCAT application, pursuant to (what is known as) the 'call-in' powers, under clause 58(2) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998. The letter relevantly stated as follows:

Firstly congratulations on behalf of the community of Kingston and we wish you well in Government. I am sorry that my first correspondence with you relates to a matter of such urgency and concern.

Council is supportive of waste and resource recovery industry and how it can be accommodated in industrial areas in Kingston. However, a business as usual approach in Kingston's Green Wedge is not working. Council recently approved a Planning Scheme Amendment to progress to Panel to apply the Green Wedge A Zone over the area. This unanimous decision of our Council was designed to demonstrate a very clear signal that existing uses would be able to continue until cessation.

Against a background of this strategic work, Alex Fraser Pty Ltd (an existing concrete recycling business) lodged an application to extend the life of their existing permit from December 2023 to December 2038. Council had insufficient information to determine the application. Council would have liked the opportunity to consider any supporting information for the application to understand the basis for the extension of time. Alex Fraser Pty Ltd have since lodged an appeal at VCAT to have the application for extension of time decided.

It seems unnecessarily hasty for this application to be lodged and considered in 2014/15 when Alex Fraser's current permit expiry date is December 2023. We respectfully request that you call in and refuse this application for an extension of time. This will allow Council and Alex Fraser to work together to identify and achieve a sustainable path forward.

We would welcome the opportunity to meet with you or one of your advisors to provide a more detailed briefing.

(b) Letter dated 24 February 2015 from the Defenders of the Southeast Green Wedge Inc to the Minister supporting the City of Kingston's request for the Minister to call-in and refuse the appellant's Extension Application. The writer summarised the submissions as follows:

To sum up, we consider it imperative that the Alex Fraser operation be terminated by the end of their existing 15 year term in 2023. This is a large scale industrial activity that is completely out-of-place in the Green Wedge and an extension of operating life would very much be at odds with the Government's stated policy of protecting Melbourne's Green Wedges. We therefore strongly urge that you act in line with Kingston Council's request to call-in and refuse the application for an extension.

(c) Letter dated 6 March 2015 from Hong Lim MP, the Member for Clarinda, to the Minister requesting immediate action to call-in and refuse the Extension Application. The writer explained the urgency for action by the Minister as follows:

The application by Alex Fraser Pty Ltd should be seen for what it is. This is a strategic application for an extension to 2038, way ahead of their permit expiry date of 2023 and should this be approved, will see new applications and further permit extension applications lodged from the other recycling businesses that operate inside Kingston's green wedge zone.

Any approval of this application for a permit extension will make it impossible to call in future applications or extensions from similar operators and will have a devastating effect on residents.

(d) Letter dated 8 April 2015 from the City of Kingston to the Minister (following up from the earlier letter dated 12 December 2014) setting out a chronology of significant milestones in the action by the City of Kingston to phase out waste related activities. The writer explains:

It is clear to my Council, and the community which we represent, that allowing a high volume waste related business to continue in the Kingston Green Wedge - potentially decades beyond the closure of the last landfill in Kingston - would be an unacceptable outcome.

It is because of this I now look to your Government's support in facilitating an outcome that can both ensure the long term success of Alex Fraser and meet the community's sustained wish for waste related activities to transition out of Kingston's Green Wedge.

(e) Email of 26 May 2015 from the Mayor of the City of Kingston to the Minister informing him of adoption by the Council of the Planning Scheme Amendment.

(f) Email of 26 May 2015 from Kingston Planning Officer to unknown person advising of adoption by the Council of the Planning Scheme Amendment.

(g) Letter dated 26 May 2015 from the City of Kingston to the Minister advising the Minister of the unanimous decision by the Council to adopt the Planning Scheme Amendment. The letter requests the support of the Minister in adopting the Planning Scheme Amendment and states:

Given the matters which are either under deliberation by the Council or the VCAT it is very important to Council that this Planning Scheme Amendment is considered and approved in a timely manner.

(h) Email of 9 September 2015 from the City of Kingston. The email includes 'a comprehensive portfolio of material' to assist with the appreciation of 'the broader context associated with Council's adopted position on Amendment C143'. The writer summarises the submission as follows:

This email with its links and attachments reinforces that a significant range of initiatives that involve a diverse range of Government Agencies, Private Investors and Council through its planned capital works are currently at a planning state or occurring within the Kingston Green Wedge. The depth of material is purposefully provided to demonstrate that much has changed since it was necessary or appropriate to have specially purposed 'Earth and Energy Resources' zone in the Kingston Green Wedge and it is for very good reason that limited life permits were afforded to activities that will in the immediate future be incompatible with the transition occurring across the Kingston Green wedge. The rehabilitation to parkland of the Victory Road over the coming few years is a very strong illustration of the point.

It is important to our Council that the broader contextual information is considered in order to demonstrate the importance of Amendment C143 being approved in the form recommended to the Council and then subsequently adopted.

(i) Email of 15 September 2015 from General Manager, Planning and Development of the City of Kingston re Lantrak. The writer states that the councillors believe the Planning Scheme Amendment should be now approved and states as follows:

I have had the opportunity last night of discussing with our Councillors the view they hold in relation to whether or not it is appropriate to seek the Minister's support at this time, to 'call in' any further matters (beyond Alex Fraser Pty Ltd) in the Kingston Green Wedge mindful of our discussions regarding Lantrak. I apologise I was not able to clearly convey this in our discussions over the last few days.

In discussions with the Councillors, it is strongly felt that it is appropriate, that Amendment C143 is formally resolved now as a matter of urgency and priority.

The next email in the email chain is totally redacted as irrelevant.

(j) Email of 22 September 2015 from General Manager, Planning and Development and the attachments and the first paragraph are redacted as irrelevant. The second paragraph states as follows:

I wish to clearly stress that our expectation is that Amendment C143 is approved as adopted and the email below makes very clear that the only application the Council has sought the Minister to call in is the Alex Fraser Pty Ltd matter. It is important that any brief to the Minister very clearly reinforces the importance of the Amendment being the priority matter for the Minister to determine.

(k) A report to the Minister approved on 24 September 2015 but signed by the Minister on 6 October 2015, includes as its 'Core Message':

Kingston Amendment C143 seeks to implement the findings of the Kingston Green Wedge Plan. Specifically, the amendment proposed to rezone land north of Kingston and Heatherton Roads from Special Use Zone - Schedule 2 (Earth and Energy Resources Industry) to a Green Wedge A Zone, apply Schedule 4 to the Environmental Significance Overlay and the Environmental Audit Overlay to the area and amend the Local Planning Policy Framework accordingly, including introducing the Kingston Green Wedge Management Plan as a Reference Document into the Planning Scheme.

The last three or four lines of the Core Message are redacted. Relevantly, as to the balance of the report:

Council adopted Amendment C143 on 25 May 2015 in accordance with some of Panel's recommendations, although they did not adopt Panel's recommendation or retain any area of the existing Special Use Zone (Attachment 3 - Council letter and meeting minutes).

(ii) Paragraphs 8 and 9 are redacted as internal workings.

(iii) Paragraph 10 reads:

The recently released Statewide Waste and Resources Recovery Infrastructure Plan (SWRRIP) identifies this area as an important waste and recycling hub for the south east metropolitan area. The closure of the existing landfills over the next seven years will result in the loss of around 1,000,000 tonnes per year by 2020. The Alex Fraser materials recycling facility currently diverts 1,000,000 tonnes of construction waste from going to landfill annually.

The next approximately four lines is redacted on the basis of internal workings.

(iv) Paragraphs 15, 22 to 25 have substantial redactions.

(l) Email of 6 October 2015 at 5.34 pm from the office of the Minister states:

Following the Minister's consideration of the 3 Kingston Green Wedge briefs, supplementary briefs will need to be prepared.

A subsequent email in this chain states:

Could you please complete the below three briefs in the system - due to urgency they were brought straight back down to the business unit.

(m) The T088 Officer Amendment Report dated 8 October 2015 summarises the background to the Planning Scheme Amendment. This report also has substantial redactions for internal workings; and notes, with respect to the Site, that it is 'subject to a current call-in request against Council's failure to extend the permit for the concrete crushing plant and waste transfer station'.

(n) Supplementary Brief to BMIN15001246 - Kingston Green Wedge Amendment C143 signed by the Minister on 11 October 2015. It attaches the original brief regarding Kingston Amendment Cl43 (BMIN15001246) and provides for signature:

(i) the Amendment Cl43 documentation (as adopted by Council) for approval; and

(ii) a letter to Cr Geoff Gledhill, Mayor, Kingston City Council advising Council of the Minister's decision.

The start of the Core Message is redacted but it notes, with respect to 'Timing':

To enable this amendment to be gazetted prior to the Alex Fraser Pty Ltd materials recycling facility VCAT hearing, a decision is required by 13 October 2015.

(o) Letter dated 11 October 2015 from the Minister to the City of Kingston advising of the approval of the Planning Scheme Amendment.

(p) Signed approval of the Planning Scheme Amendment.

(q) Supplementary brief entitled Alex Fraser site Kingston Northern Green Wedge dated 13 October 2015. It attaches 'The initial Alex Fraser site supplementary brief (MBR028120)'. The Core Message is redacted as internal workings except that for Timing, which notes that a decision needs to be made before 14 October 2015 because the VCAT hearing date is set for 26-29 October 2015.

The recommendation is for the signing of letters to Mr Hong Lim MP, the Mayor of the City of Kingston and the Defenders of the Southeast Green Wedge Inc regarding the call-in request for the Alex Fraser site VCAT proceeding. It is signed by the Minister on 14 October 2015.

(r) Letters to each of Mr Hong Lim MP, the Mayor of the City of Kingston and the Defenders of the Southeast Green Wedge Inc dated 14 October 2015. The relevant part of the letters stated as follows:

Thank you for your letter requesting that I "call-in" the proceeding relating to Alex Fraser Pty Ltd's request to extend the expiry date on their Planning Permit (P481/2008) for the site located at 275-315 Kingston Road, Clarinda that is currently before the Victorian Civil and Administrative Tribunal (VCAT). I understand that the planning permit allows the use of the site for a materials recycling facility and waste transfer station., I also understand that the VCAT proceeding will be held between the 26-29 October 2015.

The Alex Fraser site is located within the area affected by Amendment C143 to the Kingston Planning Scheme. I have recently approved Amendment C143 which applies the Green Wedge A Zone to land currently zoned Special Use Zone, Schedule 2 and makes other associated changes to the Kingston Planning Scheme to implement the recommendations of the Kingston Green Wedge Plan April 2012. The approval of Amendment C143 advances Council's long-term aspirations to enhance the environmental quality of the green wedges by safeguarding non-urban areas as Melbourne grows.

As you are aware, I have the ability to call in proceedings under Clause 58(2) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 at least 7 days prior to the day fixed for the hearing.

I have decided not to call-in this matter. VCAT is the appropriate forum to review Council's decision.

25 By letter dated 20 May 2016 to the Department, the solicitors for the appellant requested access to the documents produced under the FOI Act without the redactions.

26 By letter dated 16 June 2016 to the solicitors for the appellant, the FOI officer of the Department refused the request for the documents to be provided without redactions.

27 By letter dated 12 July 2016 to the Freedom of Information Commissioner - Reviews, the solicitors for the appellant requested the Commissioner to review the Department's decision.

28 By email of 4 August 2016 to the solicitors for the appellant, the office of the Freedom of Information Commissioner ('the Commissioner') requested an extension of time to 25 October 2016 to conduct the review.

29 By email of 11 August 2016 to the office of the Commissioner, the solicitors for the appellant agreed to the extension until 8 September 2016.

30 By email of 25 August 2016 to the solicitors for the appellant, the office of the Commissioner advised that it would take eight weeks to complete the review.

31 In a telephone call on 2 December 2016 to the solicitors for the appellant, a member of the office of the Commissioner 'indicated that her preliminary view was that she would recommend to the Commissioner to refuse the FOI application for review'.

32 By email dated 27 January 2017 to the office of the Commissioner, the solicitors for the appellant requested an update on the Commissioner's decision; but there has been, as yet, no formal refusal of the FOI application for review by the Commissioner.

33 It was common ground that on this appeal it was incumbent on the appellant to show error on the part of the Associate Justice, because the appeal is by way of rehearing and not a hearing de novo.[1]

34 The appellant contended that the Associate Judge erred on two grounds:

35 Her Honour erred in dismissing the application on the basis that she did 'not consider that Alex Fraser has reasonable cause to believe that the decision to approve the Planning Scheme Amendment was activated by an improper or extraneous purpose', where the test under r 32.05 of the Rules only required the appellant to satisfy the Court that there was reasonable cause to believe that it may have the right to relief (and not that the decision it may challenge was in fact 'activated by an improper or extraneous purpose').

36 Her Honour erred in holding that the grant of preliminary discovery would not advance the appellant's position on the basis that the appellant 'knows that the Minister did not consider or rely upon its letter of 11 August 2015', in circumstances where this holding:

(a) was contrary to the submissions of both the appellant and the Minister; and

(b) could not be rationally supported on the evidence before her Honour.

37 With respect to the first ground, the appellant submitted as follows:

(a) The Associate Judge erred in failing to find that the appellant had reasonable cause to believe that it may have the right to relief on the ground that, in approving the Planning Scheme Amendment:

(i) The Minister had a substantial purpose other than the purpose for which the power under the Planning and Environment Act was conferred; or

(ii) the Minister took into account an irrelevant consideration.

(b) If the statutory power was exercised for a purpose other than the purpose for which it was conferred, the exercise would be invalid.[2] In particular, there was a real possibility that the Minister's approval of the Planning Scheme Amendment would be invalid if it could be shown that the Minister was 'actuated by a desire to undermine the Extension Proceedings, or to extinguish those proceedings'.

(c) The Associate Judge failed to have regard to the words 'or may have' in r 32.05 of the Supreme Court (General Civil Procedure) Rules 2015. She erred by only applying the first limb of the relevant test under r 32.05 being whether there is reasonable cause to believe that the appellant has the right to the relevant relief.

38 In support of the submission in sub-paragraph (c) above, the appellant referred to the following statements in her Honour's reasons:

(a) 'The main issue in this application is whether there is sufficient evidence to suggest that Alex Fraser's subjective belief that the Minister acted outside the scope of his power in approving the amendment is reasonably held, or is a mere suspicion or hunch on its part'.[3]

(b) 'For reasons explained further below, none of the above matters supports an inference that the Minister acted beyond power, or for an ulterior purpose'.[4]

(c) 'In my view, this is a case where Alex Fraser is acting upon "suspicion and conjecture" rather than an objectively reasonable cause to believe that the Minister had acted for an improper purpose, or otherwise outside the scope of his (very wide) powers under the Act'.[5]

(d) 'Accordingly, I do not consider that Alex Fraser has reasonable cause to believe that the decision to approve the amendment was activated by an improper or extraneous purpose'.[6]

39 With respect to the second ground, the appellant submitted as follows:

(a) A person, who will be prejudiced by the exercise of an administrative power, must be afforded an adequate opportunity to be heard.[7] Although the fair hearing rule has a modified application in the context of the Planning and Environment Act, there is no authority that excludes the possibility that the Minister may be required to afford procedural fairness in the exercise of his power under s 35 of the Planning and Environment Act.

(b) The approval by the Minister of the Planning Scheme Amendment affected Alex Fraser's rights and interests in a way that was special and peculiar to it.

(c) In these circumstances, there is reasonable cause to believe that the appellant may have a right to relief on the basis of a denial of natural justice.

(d) The Associate Judge erred in dismissing the application on the basis that 'Alex Fraser knows that the Minister did not consider or rely upon its letter of 11 August 2015. Accordingly, granting the application would not add to the information Alex Fraser already has'.[8]

40 It was submitted that the Associate Judge's reasoning disclosed the following two errors:

(a) The factual finding that Alex Fraser knew that the Minister did not consider the 11 August 2015 letter was not open on the evidence and was not contended by the parties. Counsel for the Minister's submission on the point was as follows:

[T]here's nothing in the materials that says whether or not [the letter] was a document that was exhibit[ed to the Minister], and I frankly don't know the answer to that either. But simply in a temporal sense, it was well and truly before the decision was made and it was addressed to the minister, and I can't put it any higher than that.

If the Associate Judge was to find that the Minister did consider the 11 August 2015 letter, she should have explained the basis of doing so.

(b) The Associate Judge's reasoning was based on the erroneous proposition that, to obtain preliminary discovery, information sought by the applicant must add to the information already available in a positive way. Preliminary discovery is also available if it might disclose matters of defence, which could defeat the appellant's case for relief.[9]

41 On behalf of the Minister it was submitted that the passages relied on by the appellant, in which the Associate Judge referred to the relevant test, had to be read in the broader context of her Honour's reasons so that the Court should infer that her Honour did identify and apply the correct test. In particular, the Minister relies upon the following statement in her Honour's reasons:

(a) The Associate Judge noted there was 'little dispute concerning the principles applicable to applications for preliminary discovery under the Rules, which are accurately and conveniently summarised in Alex Fraser's written outlines of submissions'. She then set out the appellant's submissions including 'the issue of whether Alex Fraser has "reasonable cause to believe" that it may have a right to relief'.[10]

(b) The Associate Judge noted the appellant's submission to the effect that the circumstances disclosed that it 'may be entitled to relief in this Court on the grounds that the Minister acted for an improper purpose'.[11]

(c) The Associate Judge later stated: 'As the key issues in this application are whether Alex Fraser has reasonable cause to believe that it may have a right to relief against the Minister ...'[12]

42 Accordingly, it was submitted that the Reasons should be read so that, where her Honour referred to the fact that the Minister 'had acted', she intended to also connote 'or may have acted'.

43 With respect to the second ground, the Minister submitted as follows:

(a) Despite the fact that neither party contended for a finding that the Minister did not consider the 11 August 2015 letter, her Honour was entitled to undertake an analysis, and come to her conclusion, on the basis that the 11 August 2015 letter was not in the documents disclosed on the FOI request.

(b) The Associate Judge was entitled to accept the Minister's submission that any duty to afford natural justice would depend entirely on consideration of the statutory scheme in question. Accordingly, the appellant already had all the information necessary to consider bringing an action on the basis of a denial of natural justice.

(c) The appellant was aware that the material disclosed under the FOI request referred to its position and the Panel summarised the appellant's position as presented at the Panel hearing. Accordingly, the appellant did have all the information that it required to make a decision about whether it had a claim based on a denial of procedural fairness.

Principles on application for preliminary discovery

44 The appellant's application before the Associate Justice was for preliminary discovery under r 32.05, which provides as follows:

Discovery from prospective defendant

Where -

(a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description the applicant has ascertained;

(b) after making all reasonable inquiries, the applicant has not sufficient information to enable the applicant to decide whether to commence a proceeding in the Court to obtain that relief; and

(c) there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had in that person's possession any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist the applicant to make the decision -

the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c).

45 The argument before the Associate Judge related only to the requirement in sub-r 32.05(a) being whether there is reasonable cause to believe that the appellant:

46 The relevant principles to be applied on an application for preliminary discovery were not in issue before the Associate Judge. As to what is needed to satisfy the requirement of a 'reasonable cause to believe' the parties submitted, and the Associate Judge accepted, that the authorities establish that some fishing expedition is permitted; but a 'flimsy foundation', 'mere hunch',[13] 'assertion', 'suspicion' or 'conjecture' were each insufficient.[14]

47 Accordingly, the Associate Judge identified the main issue as 'whether there is sufficient evidence to suggest that Alex Fraser's subjective belief is reasonably held, or is mere suspicion or hunch on its part'.[15]

48 I should first observe that Rule does not direct attention to any belief of the applicant. Rather it requires reasonable cause for a hypothetical belief.[16]

49 Further, for my part I do not find the antonyms of 'suspicion or hunch' useful because they are not mutually exclusive with a 'reasonable cause to believe'. In my opinion, the authorities that draw the distinction with suspicions etc are merely emphasising that a belief is not sufficient - there must be reasonable cause for the belief.[17]

50 The use of synonyms and antonyms are apt to distract the court from the task of interpreting the precise words of the legislation. As Kirby J said in Central Bayside General Practice Association Ltd v Commissioner of State Revenue:[18]

Time and time again, this Court has reinforced the foregoing instruction. It is self-evident, but apparently it needs to be restated. Where the law in issue is expressed in the form of an Act of an Australian legislature, it is in the words of that statute that the content of the legal obligation is to be found, not in judicial synonyms, restatements or approximations.[19]

51 The critical element of the test is reasonableness rather than whether the circumstances would cause a belief as opposed to a suspicion or some other hypothetical state of mind. A reasonable belief may incorporate elements of each of these putative antonyms. As the High Court stated in George v Rockett:

Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably reduce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.[20]

52 In fact, conjecture is by definition 'an opinion without sufficient evidence for proof'.[21] Further, a suspicion can be on reasonable grounds, which can give rise to powers to arrest and other serious consequences.[22] Accordingly, a reasonable suspicion, conjecture or assertion may each fall within the ambit of a reasonable belief.

53 The proper test is revealed by the words of the r 32.05(a). What is required is the following:

(a) There is cause for a belief in the relevant proposition - a belief being an inclination of the mind towards assenting to a proposition.[23]

(b) The relevant proposition is (on the second limb) that there 'may be the right' to relevant relief. The use of the word 'may' bespeaks possibility.[24] Given the purpose of the Rule is to advance the administration of justice,[25] r 32.05 should be interpreted as requiring a real (as opposed to a fanciful or remote possibility). However, even a real possibility may be highly improbable.[26]

(c) The test is qualified by a requirement that the cause for the belief in the proposition must be reasonable. It is trite to say that what is reasonable in a particular case will depend upon all of the circumstances of the case.

54 Accordingly, the jurisdictional threshold under r 32.05 is low.[27] This is consistent with the following:

(a) The primary purpose of the rule is to advance the administration of justice by allowing a prospective plaintiff to make an informed decision on proper material about whether or not to bring a claim.[28] The importance of this rule to the advancement of the administration of justice has been accentuated by the certification requirements on filing of civil proceedings under Part 4.1 of the Civil Procedure Act 2010.[29] It is well established that the rule should be interpreted benevolently.[30]

(b) It would be incongruous if the jurisdiction to order preliminary discovery could not be enlivened because of the lack of evidence, which is the very cause of the application. The purpose of the Rule is to allow an applicant, who has inadequate proof of any cause of action, to discover whether or not evidence is available[31] that will impact (positively or negatively) on the possible proceeding. [32]

(c) Although the jurisdictional threshold is low, its satisfaction only empowers the Court to exercise its discretion.[3] In the exercise of its discretion, the Court can control any excesses;[33] and assess whether there may be real benefit in making the order.[34] It will be entitled to weigh the full range of relevant matters in determining whether an order is in the interests of justice - including the following:

(i) The level of inconvenience and cost that will be caused to the respondent.

(ii) Whether discovery may cause commercial or other damage to the respondent.

(iii) Whether the respondent will be reimbursed for its costs.

(iv) Whether an order would be inutile because the documents are privileged.[35]

(v) The prospect of the documents sought providing the information required by the applicant.

(vi) Whether the fact that there is no real prospect of success is apparent or discovery will not serve any useful purpose.[36] However, delving extensively in the merits of the existence of a possible cause of action will usually not be appropriate.[37]

55 In my opinion, on a fair reading of the Reasons, her Honour only applied the first limb of r 32.05(a) in concluding that the appellant did not have 'reasonable cause to believe that the decision to approve the amendment was activated by an improper or extraneous purpose'.[38] Although her Honour did identify both limbs of r 32.05(a) in summarising the appellant's submissions, she only referred to the first limb when applying the facts to the test under the Rule.

56 I consider that the following statements in the Reasons are consistent with the Associate Judge not applying the second limb of r 32.05(a) by asking whether there is reasonable cause to the believe that the appellant may have the right to relief:

(a) In short, reasonable minds can differ, as they did, upon whether the approval of the amendment was in the public interest. For that reason, it is difficult to draw an inference that the Minister's rejection of the panel's recommendation, and possibly the Department's recommendation, without more, indicates that he approved the amendment for an improper purpose.[39]

(b) It is highly implausible that a substantial motivating factor in approving the amendment was to, by a side wind, undermine Alex Fraser's position in the VCAT proceeding, albeit I accept the decision to approve the amendment had that effect. It seems to me to be a far more likely explanation is that the Department (and the Minister) understood that making the decision in advance of the VCAT proceeding would mean that the parties to the VCAT proceeding knew where they stood prior to its commencement.[40]

(c) In my view, the fact that the Minister rejected the panel's recommendations, and possibly the advice of the Department, does not suggest that the Minister acted for another purpose than making a decision in what he considered to be in the public interest. In the context in which the decision was made, and without more, it appears that the Minister simply took a different view as to whether the amendment was in the public interest.[41]

(d) Rather, this is an instance of an understandably aggrieved party seeking documents not to make a decision as to whether to bring a proceeding to vindicate a claim it believes it has, but to identify whether it has a claim at all.[42]

57 The Associate Judge accepted the submission of counsel for the appellant that the question of whether the Minister was obliged to afford natural justice to the appellant was not settled, and needed to be considered in its factual contest.[43] This was not in issue on this appeal.

58 I consider that the Associate Judge's finding that 'Alex Fraser knows that the Minister did not consider or rely upon its letter of 11 August 2015', was also an error. As neither party contended for this proposition, it may have been the result of a miscommunication. If, as counsel for the Minister suggested may have been the case, her Honour drew the conclusion from the fact that the 11 August 2015 letter was not disclosed under the FOI request, one would have expected that:

(a) she would have put to counsel that such an inference was available; and

(b) disclosed in her Reasons, why she was able to conclude that the content of the 11 August 2015 letter was not referred to or otherwise incorporated into the reports to the Minister.

59 In the circumstances, I consider her Honour erred in refusing the application on the basis that ordering preliminary discovery 'would not add to the information Alex Fraser already has'. The purpose of the r 32.05 is to furnish the applicant with documents which are reasonably necessary to enable it to decide whether or not to file a proceeding. Such documents may include matters by way of defence that could defeat a prima facie claim.[44] If the Minister was briefed with the substance of the appellant's submissions, as set out in the 11 August 2015 letter, I accept the submission by senior counsel for the appellant that it may have a significant effect on the appellant's prospects and its decision to file proceedings.

60 In my opinion, there is reasonable cause to believe that the appellant may have the right to obtain relief against the Minister on the basis that:

(a) the approval of the planning scheme amendment was activated by an improper or extraneous purpose; and

(b) the appellant was entitled to be heard prior to the approval of the Planning Scheme Amendment.

61 The reasonable cause arises from the fact that the circumstances support a strong relationship between the VCAT application and the approval of the Planning Scheme Amendment - in combination with the fact that:

(a) the Approval was contrary to the recommendation of the Panel; and

(b) there are grounds to believe it was contrary to the advice initially provided to the Minister by the Department.

62 The relationship between the VCAT proceeding and the approval of the Planning Scheme Amendment is demonstrated by the following:

(a) The Approval was immediately prior to the proposed hearing of the VCAT proceeding. The supplementary brief to the Minister identified the timing requirement for the gazetting of the Planning Scheme Amendment, prior to the hearing of the VCAT proceeding.

(b) The documents that were produced, as being those relied upon and considered by the Minister when making the decision to approve the Planning Scheme Amendment, principally requested the Minister to call in and refuse the appellant's application in the VCAT proceeding.[45]

(c) The report and the supplementary reports to the Minister both make significant references to the appellant's use of the Site and the VCAT proceeding.

(d) Three days after approving the Planning Scheme Amendment (on 14 October 2015), the Minister approved letters to Mr Hong Lim MP, the mayor of the City of Kingston and the Defenders of the South East Green Wedge stating that the Minister was not proposing to call in the appellant's Extension Application.

63 In my opinion, although I do not assess the appellant's prospects of success in a later proceeding as strong, the interests of justice favour the making of an order for preliminary discovery. In particular, it can be reasonably expected that the redacted material will be critical in disclosing the purpose of the Minister in approving the Planning Scheme Amendment. The basis of the relevant redactions from the reports to the Minister are 'internal workings' within the meaning of s 30 of the FOI Act. Accordingly, the redacted material should 'disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister, in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government'.[46] It is such communications that are most likely to disclose the Minister's considerations and purpose.

64 Further, production of the documents involves no undue inconvenience to the Minister. In fact, the discovery would require no more than production of the documents already produced, without redactions.

65 I propose to order that the respondent make discovery to the appellant of any document in his possession relied on or considered by him in coming to his decision to approve Amendment C143 of the Kingston Planning Scheme.

[1] Oswal v Carson [2013] VSC 355 [11] (Ferguson J); Weber v Deakin University [2016] VSC 147 [25] (Zammit J).

1. [2] Thompson v Council of the Municipality of Randwick [1950] HCA 33; (1950) 81 CLR 87, 106 (Williams, Webb and Kitto JJ); R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, 233 (Aickin J); Schieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719, 731 (Wilcox and French JJ); Haneef v Minister for Immigration and Citizenship [2007] FCA 1273; (2007) 161 FCR 40, 88 [287] (Spender J), where his Honour reminds that '[t]he purpose for the grant of a power is to be derived from the statute conferring it'.

[3] Alex Fraser Pty Ltd v Minister for Planning [2018] VSC 152 ('Reasons') [32].

[7] Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383, 395 (Dixon CJ and Webb J). See also Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 563 (Gibbs CJ); FAI Insurances Ltd v Winneke (1982) 151 CLR 342, 360 (Mason J).

[9] Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy [2008] FCAFC 7; (2008) 166 FCR 64, 80 [60] (French, Weinberg and Greenwood JJ). See also Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2008] FCAFC 133; (2008) 169 FCR 435, 442 [31]-[32] (Heerey, Gyles and Middleton JJ).

[14] St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147, 153-4 [26] (Hely J).

[16] Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy and Another [2008] FCAFC 7; (2008) 166 FCR 64, 79 [59] (French, Weinberg and Greenwood JJ).

[17] See for example Schmidt v Won [1998] 3 VR 435, 445 (Ormiston JA with whom Charles and Batt JJA agreed).

[18] [2006] HCA 43; (2006) 228 CLR 168, 197-8 [81]-[84] (Kirby J). Also see Livingspring Pty Ltd v Kliger Partners (2008] 20 VR 377 [13] (Buchanan JA).

[19] Citing Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 312-13 [31] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ), and 17 other earlier authorities.

[20] [1990] HCA 26; (1990) 170 CLR 104, 116 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) (Emphasis added).

[22] See for example Goldie v Commonwealth of Australia (2002) 117 FCR 566 [4]-[5] (Gray and Lee JJ) [51]-[52]; and Crimes Act 1958 ss 195, 462A, 463A, 464A, 464B.

[23] See [49] above.

[24] The relevant definition of 'may' in the Macquarie Dictionary is 'to be possible: this may be achieved in various ways.' (Emphasis in the original).

[25] Unity Energy Ltd v Energy Risk Management Pty Ltd [1998] VSC 133 [36] (Gillard J).

1. [26] Inland Revenue Commissioners v Trustees of Sir John Aird's Settlement [1982] 2 All ER 929, 940 (Nourse J) quoted with approval in Australian Securities and Investments Commission v Carey (No 6) [2006] FCA 814; (2006) 153 FCR 509 (French J); which was in turn cited with approval in Smith v R [2017] HCA 19; (2017) 259 CLR 291 [88] Edelman J.

[27] Glencore International AG v Selwyn Mines Ltd (recs and mgrs apptd) [2005] FCA 801; (2005) 223 ALR 238 [16] (Lindgren J).

[28] Unity Energy Ltd v Energy Risk Management Pty Ltd [1998] VSC 133 [36] (Gillard J).

[29] BJ Bearings Pty Ltd v Whitehead [2016) VSC 44 [19] (Hollingworth J).

[30] Schmidt v Won [1998] 3 VR 435, 445 (Ormiston JA, with whom Charles and Batt JJA agreed).

[31] Ibid_;_ Paxus Services Ltd v People Bank Pty Ltd [1990] FCA 500; (1990) 99 ALR 728, 733 (Burchett J).

[32] Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy and Another [2008] FCAFC 7; (2008) 166 FCR 64, 80 [60] (French, Weinberg and Greenwood JJ). See also Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2008] FCAFC 133; (2008) 169 FCR 435, 442 [31]-[32] (Heerey, Gyles and Middleton JJ).

Glowatzky v Insultech Group Pty Ltd (1997) [3]9 IPR 215 (Branson J), 220; Australian Football League v Stadium Operations Ltd [2009] VSC 264 [5] (Warren CJ).

[33] St George Bank Ltd v Rabo Aust Ltd [2004] FCA 1360; (2004) 211 ALR 147 [26(a)] (Hely J).

1. [34] Australian Football League v Stadium Operations Ltd [2009] VSC 264 [5] (Warren CJ); Scarletti Pty Ltd v Milwood Printing Co Pty Ltd (Unreported, Supreme Court of Victoria, Court of Appeal, Phillips CJ, Crockett and Southwell JJ, 28 July 1994) BC9400965, 12.

[35] Murdesk v Secretary to the Department of Business and Innovation [2011] VSC 436 [17] (John Dixon J).

[37] Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy [2008] FCAFC 7; (2008) 166 FCR 64, 78 [53] (French, Weinberg and Greenwood JJ).

[43] Reasons [45]; on the need to consider decision-making power within context, see, eg, Winky Pop Pty Ltd & Anor v Hobsons Bay City Council [2007] VSC 468 [49].

[44] Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy and Another [2008] FCAFC 7; (2008) 166 FCR 64, 80 [60] (French, Weinberg and Greenwood JJ).

[45] See sub-paragraphs [44](a), (b), (c) and (h).