Beechworth Lawn Tennis Club Inc v Australian Sports Commission

The discovery application 13 By an interlocutory application dated 29 January 2021, the applicant sought discovery of six categories of documents pursuant to r 20.15 of the Federal Court Rules 2011 (Cth). 14 Before that application was made, Sport Australia had already either provided or agreed to provide five of the six categories sought. 15 The parties were unable to resolve a dispute about one remaining category. 16 BLTC now seeks an order that Sport Australia discover the following: 1. All documents in relation to the Minister's role in decisions relating to funding approvals for the CSIG Program (including all documents containing or recording any communications, or recording any meetings or telephone calls (including diary entries, minutes of meetings, telephone records and notes of conversations) between the Commission or the Commission's delegates, servants or agents and any officers, employees or agents of the Minister in relation to the Minister's role in decisions relating to funding approvals for the CSIG Program) and which documents are: (a) documents specifically about the role which the Minister was to have in decisions as to which grant applications to accept or reject; and (b) documents evidencing (i.e., recording or embodying) the Minister's input or views into decisions as to which grant applications to accept or reject; and (c) documents that have not already been provided to the applicant. 17 Sport Australia agreed that documents specifically about the role which the Minister was to have in decisions as to which grant applications to accept or reject (proposed order 1(a)) are relevant, but that any order for their discovery and production should have this proviso added, namely "on the condition that the search for documents is limited to a reasonable search of electronic records and that [Sport Australia] need not provide anything falling within this category which has already been provided to [BLTC]". 18 Sport Australia also agreed that documents evidencing the Minister's input or views into decisions as to which grant applications to accept or reject (proposed order 1(b)) are relevant, but only to the extent that any such input or views relate to the BLTC and Wangaratta Clay applications. 19 Should the two proposed orders be limited in the way contended for by Sport Australia?

Applicable rules 20 Rule 20.14 is headed "Standard discovery" and relevantly provides: (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. 21 Rule 20.15 is headed "Non‑standard and more extensive discovery" and relevantly provides: (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; (c) whether the party seeks the use of categories of documents in the list of documents; (d) whether discovery should be given in an electronic format; (e) …

Proposed order 1(a) 22 The debate about proposed order 1(a) can be disposed of immediately. As BLTC submitted, in circumstances where the direct relevance of the documents sought is conceded, and in the absence of any suggestion, let alone formal claim, that it would be oppressive to discover "physical" documents, as opposed to electronic ones, there is no issue raised for determination. If such physical documents exist, then there is no good reason why they should not be discovered, and when pressed senior counsel for Sport Australia could not advance one.

The competing submissions about proposed order 1(b) 23 I turn now to the competing submissions about the main issue in dispute, which senior counsel for BLTC correctly characterised as: "whether discovery … ought be limited, as [Sport Australia] proposes, to documents that relate to, firstly, [BLTC's] application for funding and, secondly, the specific grant to [Wangaratta Clay] that we challenge; or alternatively, as we propose, that it should capture more broadly documents in relation to decisions made under the rounds of grants and decisions that were made and aren't described in the pleadings".

Sport Australia's submissions 24 Sport Australia submits that the "documents evidencing the Minister's input or views into decisions as to which grant applications to accept or reject", not relating in any way to the grant applications concerning BLTC or Wangaratta Clay, are not directly relevant to the pleaded issues in this proceeding. It submits that documents that relate only to other grant applications, and which are not concerned, wholly or even in part, with the grant applications for BLTC and Wangaratta Clay, should not be the subject of discovery. That is because, it submits, it is only the grant applications concerning BLTC and Wangaratta Clay that are the subject of the relief sought by the applicant and the grounds of review by which that relief is sought. 25 Sport Australia submits, including in particular by reference to paragraphs [60]-[62] of the statement of claim, that the questions whether Sport Australia purported to delegate its decision-making power to the Minister or acted at the dictation of the Minister, relate only to the specific grant applications concerning BLTC and Wangaratta Clay, and do not relate to other grant applications. It also points out that no other grant applicants are parties to this proceeding. 26 Sport Australia also submits that most of the allegations of fact made in the statement of claim, subject to some minor exceptions, are admitted in its defence filed on 28 May 2021, so that to that extent, they are not facts in issue. 27 In the course of oral argument, senior counsel for Sport Australia agreed that a further narrow class of documents is discoverable as a result of its pleas by way of defence that it was "requested" - rather than "directed", as BLTC alleges - to do or not to do certain things. See paragraphs [49], [50], [53], [54] and [56] of the defence. By way of example, paragraph [49] of the statement of claim contains an allegation that "[b]etween about 1 February 2019 and 4 February 2019, the Minister's Office contacted Sport Australia and directed that Sport Australia … remove specified applications from the list of recommendations … and … add specified applications to its list of recommendations". Paragraph [49] of the defence is as follows: "Save that Sport Australia says that the Minister's Office requested, and did not direct, that Sport Australia make changes to the list of recommended CSIG applications, Sport Australia otherwise admits the allegations in paragraph 49 of the statement of claim". The defences to paragraphs [50], [53], [54] and [56] are similarly worded. I assume that it will therefore be necessary to make an additional order in that regard. 28 Sport Australia submits that, "[i]n the circumstances, there is no sufficient indication, at this stage, that documents solely about input from the Minister in respect of many other grant applications would be likely to have 'significant probative value' in respect of the grant applications the subject of this proceeding" and that "[i]t is therefore appropriate for discovery of 'documents evidencing … the Minister's input or views into decisions as to which grant applications to accept or reject' to be confined to those documents evidencing any such input or views relating, wholly or at least in part, to one or both of the grant applications concerning BLTC and [Wangaratta Clay]".

BLTC's submissions 29 BLTC submits that documents about the role which the Minister was to have in decisions can rationally affect the assessment of the probability that Sport Australia took into account, but was not dictated by, the Minister's approval when it decided not to make the grant to BLTC. It says, and Sport Australia does not dispute, that documents actually evidencing the Minister's role in the decision on the BLTC grant are plainly relevant. 30 It submits that documents actually evidencing the Minister's role in other decisions are relevant "through tendency reasoning" and also "to the existence of a delegation of decision-making authority to the Minister, or the existence of a practice or policy of acting at the Minister's dictation that makes it more likely that that same practice or policy was applied here", citing Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51 at 67 [67] (Sackville J) and Unique International College Pty Ltd v Australian Competition and Consumer Commission (2018) 266 FCR 631 at 679 [206]-[207] (Allsop CJ, Middleton and Mortimer JJ). (There was also reference made to the decision of Kaye J in R v Jacobson [No 2] [2014] VSC 368; (2014) 243 A Crim R 466 at [68]-[73], but that was a criminal case where the passages cited deal with whether evidence of certain charges was cross-admissible in respect of other charges, so it has no conceivable relevance here). 31 Like Sport Australia, BLTC also relies on paragraphs [60]-[62] of the statement of claim and on Sport Australia's defence to them. 32 Because both parties place emphasis on those paragraphs, it is useful to set them out in full: Statement of claim 60. In the premises, the decision not to grant the BLTC Application (Decision) was affected by jurisdictional error, in that Sport Australia purported to delegate decision-making authority to the Minister for Sport without any statutory authority for such a delegation. Particulars (a) The purported delegation is express and to be implied from the circumstances. (b) In so far as the purported delegation is express, BLTC refers to the Guidelines as pleaded at paragraphs 10 to 11 above. (c) In so far as the purported delegation is implied, BLTC refers to the course of conduct as pleaded at paragraphs 25 to 59 above. (d) Further particulars may be provided after discovery and before trial. Defence 60. Sport Australia denies the allegations in paragraph 60 of the statement of claim and says that: (a) any decision to make, or not to make, a grant in respect of the Indigo Shire Council application was ultimately a matter for Sport Australia; (b) having taken into account, among other things, the Minister's approval of CSIG applications, Sport Australia decided on or around 26 April 2019 not to proceed to make a grant to the Indigo Shire Council in respect of the Beechworth project at that time; (c) that decision was not the subject of any delegation to, or dictation from, the Minister; and (d) the BLTC has not established jurisdictional error affecting that decision. Statement of claim 61. Further or alternatively, the Decision was affected by jurisdictional error, in that Sport Australia purported to act at the dictation of the Minister for Sport. Particulars (a) That Sport Australia purported to act at the dictation of the Minister for Sport is to be inferred from: (i) the terms of the Guidelines as pleaded at paragraphs 10 to 11 above; and/or (ii) the course of conduct as pleaded at paragraphs 25 to 59 above. (b) Further particulars may be provided after discovery and before trial. Defence 61. Sport Australia denies the allegations in paragraph 61 of the statement of claim and refers to and repeats the matters set out in paragraph 60 above. Statement of claim 62. Further, or alternatively, the grant of $35,980 to Wangaratta Clay pursuant to the CSIG was made without lawful authority because: (a) it was made by decision of the Minister for Sport, who had no power to make it; Particulars BLTC refers to and repeats the particulars to paragraph 60 above. (b) alternatively, it was purportedly made at the dictation of the Minister for Sport; Particulars BLTC refers to and repeats the particulars to paragraph 61 above. (c) alternatively, the grant was affected by apprehended bias in that the Minister for Sport was, as pleaded at paragraph 23 above, a member of Wangaratta Clay at the time of the grant. Defence 62. Sport Australia denies the allegations in paragraph 62 of the statement of claim and says that: (a) any decision to make, or not to make, a grant in respect of the [Wangaratta Clay] application was ultimately a matter for Sport Australia; (b) having taken into account, among other things, the Minister's approval of CSIG applications, Sport Australia decided on or around 13 March 2019 to proceed to make a grant to [Wangaratta Clay] in respect of the project the subject of the [Wangaratta Clay] application; (c) the decision to make a grant was not the subject of any delegation to, or dictation from, the Minister; (d) that decision was not affected by apprehended bias because: (i) both Sport Australia and the Minister approved the [Wangaratta Clay] application; and (ii) there is no indication that Sport Australia did so with any awareness of the Minister's membership of [Wangaratta Clay]; and (e) the BLTC has not established jurisdictional error affecting that decision. 33 The first ground advanced in respect of the decision to refuse BLTC and to grant Wangaratta Clay is that the Minister acted as a delegate when no delegation power was available. BLTC submits that it is apparent from the particulars to paragraphs [60] and [62(a)] of the statement of claim that "… by relying on the Guidelines and the pleaded 'course of conduct' … the applicant's case at present … is not that the Minister was an ad hoc delegate in respect of these two grants and none others. The applicant's case is that the Minister acted as delegate across the grant program, and that this was no different in BLTC's and [Wangaratta Clay's] cases. Understood in this way, as the case should be, wider discovery is justified than what the first respondent envisages". 34 BLTC submits that the same reasoning applies to the second ground (acting at the Minister's dictation), and that "[t]he applicant's case is that the grant program operated in a way that saw [Sport Australia] act at the Minister's dictation, and these two grants were no exception". 35 BLTC submits that "… it is clear that [its] case is akin to a system case. The case is that the grant program operated in a particular way, and that that is how it operated in the BLTC's and [Wangaratta Clay's] cases also. If one likes, there was a system or pattern of delegation or dictation". BLTC says that "[i]t is beside the point as a pleading matter because it is trite to note that a pleading is to state material facts, not the evidence by which those material facts are to be proved or the chain of reasoning from evidence to inference to factual findings … It is not necessary - nor even permissible - to plead in the way the first respondent suggests is required to show direct relevance". 36 Senior counsel put the point this way in his oral submissions: And both of those propositions [in paragraphs [60] and [62] of the statement of claim] call attention to the extent and, critically, the nature of the Minister's involvement in or influence over the decisions that are under challenge. Those issues are, of course, dependent on evidence, dependent on the facts of the individual case and the view that is reached about them may logically depend on interactions between the Minister and the Commission, other than the decision making in relation to these particular grants. 37 Senior counsel also relied on what Sport Australia said in their defence at paragraphs [60] and [62], as follows: And the final aspect of the defence that we would seek to draw some attention to is in paragraphs 60 to 62, which is responding directly to the grounds of the complaints that are articulated in 60 to 62 in the statement of claim. Among other things, paragraph 60 and paragraph 62 both put a proposition that the Sports Commission had taken into account, among other things, the Minister's approval. Now, that puts a particular legal character on the transaction between the Minister and the Commission in those particular cases. That's a characterisation that is fact dependent and, we would say, context dependent. And the context, which may very well shed light on the correctness or otherwise of that characterisation, includes how the Minister and the Sports Commission dealt with each other in the course of the entire rounds of decision making that are addressed in the pleadings.

Consideration 38 Ordinarily, a party is required to discover documents that are directly relevant to the issues raised in the proceeding, even in the case of non-standard discovery. 39 As Besanko, Markovic and Banks-Smith JJ explained in Clifton (Liquidator) v Kerry J Investment Pty Ltd [2020] FCAFC 5; 379 ALR 593 at 640 [172]-[173]: 172 In making an application for non-standard discovery pursuant to r 20.15 of the Rules there is a positive obligation imposed on the applicant for discovery to identify a number of things including any criteria in rr 20.14(1) and (2) that should not apply. It follows that, on a proper construction of r 20.15, where an order for non-standard discovery is made the requirements of r 20.14 will continue to apply unless an application is made to have them excluded. The requirements of r 20.14 include that the documents are "directly relevant" to the issues raised in the proceeding. 173 That this is the effect of the combined operation of the Rules is not surprising. Rule 20.14 gives guidance to parties as to how to proceed with discovery. There is a logic to the parameters it sets continuing to apply to non-standard discovery. That is particularly so in relation to an order for non-standard discovery by way of discovery in categories. It could not be the intent of such an order that the discovery to be provided would have a wider ambit than standard discovery in the same proceeding. The intent of discovery by categories is, in the usual case, to refine and narrow the range of discovery. To remove the requirement of direct relevance to the issues as a matter of course would be contrary to that intention. There is no doubt for that reason that r 20.15 is framed as it is, putting the onus on the applicant for non-standard discovery to make a case as to why aspects of r 20.14(1) and (2) should not apply. 40 Senior counsel for BLTC submitted that "this is not an application in which the court is constrained by that concept [of direct relevance] or by the terminology of rule … 20.14. We're in an area where the court decides, in a broader sense, whether discovery of particular categories of documents is appropriate". It was further submitted that the documents identified by BLTC should be discovered because they are "… capable of being, potentially, tendered and assisting the court in resolving the matters that are in issue in the proceeding". 41 I am unable to accept the submission by BLTC that this application is not to be governed by the usual rule. First, as the Full Court said in Clifton (Liquidator) v Kerry J Investment Pty Ltd at [172] in the passage quoted above, in order for the operation of r 20.14 to be excluded, an application to that effect must be made. None was made. Secondly, and in any event, BLTC has not identified any reason why the usual rule requiring that a category of documents be directly relevant ought not to apply. Accordingly, I will proceed on the conventional basis that the order sought by BLTC for non-standard discovery should be made only if the identified documents are "directly relevant to the issues raised by the pleadings". 42 In my view, documents evidencing the Minister's input or views into decisions as to which grant applications to accept or reject that relate only to other grant applications, and which are not concerned, wholly or even in part, with the grant applications for BLTC and Wangaratta Clay, are not directly relevant to the issues raised by the pleadings, for the following reasons. 43 First, as Sport Australia submitted, aside from minor matters, the allegations of fact made in the statement of claim are admitted. No relevant obligation of discovery arises from the admitted allegations of fact (including paragraphs [1]-[5], [13], [18]-[22] and [24] to [59] of the statement of claim). See Mulley v Manifold (1959) 103 CLR 341 at 345 (Menzies J) ("… discovery is a procedure directed towards obtaining a proper examination and determination of [pleaded] issues … Only a document which relates in some way to a matter in issue is discoverable …"). 44 Secondly, Sport Australia is also correct to contend that BLTC's pleaded case, including critically the questions whether Sport Australia purported to delegate its decision-making power to the Minister or acted at the dictation of the Minister, relate only to the specific grant applications made by BLTC and Wangaratta Clay, and do not relate to other grant applications. So much, with respect, is objectively apparent from the paragraphs of the statement of claim ([60]-[62]) set out above, which plead a case, and only a case, about "the decision not to grant the BLTC [a]pplication" ([60] and [61]) and "the grant of $35,980 to Wangaratta Clay" ([62]). And the relief sought in the originating application (see paragraph [12] above) is directed only to the BLTC application and the Wangaratta Clay grant. 45 Thirdly, there is no case raised, or even suggested, in the pleadings that there existed a practice, policy, system or pattern of behaviour, by which Sport Australia acted at the behest or direction of the Minister, or that "tendency reasoning" might be or become relevant. To the extent that submissions were made on behalf of BLTC to the contrary, including the submission that its case is that "the grant program operated in a way that saw Sport Australia act at the Minister's dictation, and these two grants were no exception", I am unable to agree. In my view, that case, or any case founded on an allegation of a practice, policy, system or pattern of behaviour of the type suggested by BLTC in its submissions is not open on an objective reading of its pleaded case. It follows that the two cases relied on by BLTC (see paragraph [30] above) have no application here, because they dealt with a dispute about the relevance of particular evidence to an articulated claim that such evidence showed a person's propensity to act in a particular way. 46 Fourthly, I do not accept BLTC's submission that, on an application such as this, the pleadings are irrelevant to a question, as senior counsel put it, whether "there was a system or pattern of delegation or dictation". Of course, as BLTC submitted, whether such a system or pattern existed in any given case would be dependent upon the evidence led at trial, and whether the evidence would be admissible would depend upon whether it was relevant to an issue in dispute. But on an application such as this, absent any pleaded claim relating to a system or pattern of the type described by counsel for BLTC, I fail to see how documents of the type sought by BLTC on this application can be described as being "directly relevant to the issues raised by the pleadings". As senior counsel recognised in the submission extracted at paragraph [36] above, paragraphs [60] and [62] of the statement of claim are directed to "the nature of the Minister's involvement in or influence over the decisions that are under challenge". As I have endeavoured to explain, the statement of claim does not plead a case that involves, directly or indirectly, any other decisions. 47 It also seems to me, with great respect, that it simply does not logically follow, as BLTC asserts, that issues concerning the Minister's involvement in or influence over the two decisions under challenge, because they are "dependent on the facts", thus depend for their resolution upon interactions between the Minister and Sport Australia in relation to other grants.

One final matter 48 BLTC submitted that the court should be satisfied that its application "is not mere fishing". It submits that the court can have regard to the fact that the Auditor-General, in the report repeatedly referred to in particulars contained in the statement of claim, considered the Minister to have been involved in Sport Australia's decision-making. BLTC says that it does not ask the court to accept the truth of the matters in the Auditor-General's report, but "[f]or the purposes of this interlocutory application, the fact of what is said in the report is enough to establish that the allegations made in the proceeding are not bare allegations of a kind to which the Court might refuse the aid of discovery". 49 BLTC submitted that "we seek, if necessary, to rely on the fact that the [Auditor-General's] report discusses this grant program and reaches certain conclusions in relation to it to show that there was a reasonable basis for the allegations that we've made in the statement of claim and a reasonable basis to consider that the documents we seek … are likely to have, to be of some assistance in seeking to make out those allegations". 50 The first point does not arise, because the Minister did not contend otherwise. As to the second point, there is no evidence before me that would permit the drawing of such a conclusion. In those circumstances, there is no need to explore the applicability of s 16 of the Parliamentary Privileges Act 1987 (Cth). (For a useful description of the history and operation of that provision, see the judgment of Rares J in Leyonhjelm v Hanson-Young [2021] FCAFC 22; (2021) 387 ALR 384 at 398-404 [23]-[55]).

Disposition 51 It follows that I will make proposed order 1(a). 52 I will make proposed order 1(b), adding the following: "to the extent that any such input or views relate to the Beechworth and Wangaratta applications". 53 I will, however, ask that the parties confer, and submit a joint minute, about the precise form of the orders that should be made consistent with these reasons, including because in response to a question from me about the case pleaded in paragraphs [49], [50], [53], [54] and [56] of the defence, senior counsel for Sport Australia agreed to "an extension of the discoverable documents that [Sport Australia] would be content for [the court] to make orders on". 54 The joint minute may also deal with the question of costs, if the position is agreed. If it is not, the parties should file brief submissions on the issue within seven days. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan.