Administrative Law - Judicial review procedure and evidence - Applications - Amendment of grounds -Sufficiency of ground where amendment sought - Need to identify real bases of complaint and demonstrate that ground arguable.

Knuth v Minister for Resource Industries [1993] 2 Qd R 263; Jilani v Wilhelm [2005] FCAFC 269, 148 FCR 255 applied.

Administrative Law - Judicial review - Procedure and evidence - Discovery and interrogatories - Discovery - Discovery in judicial review proceedings confined to documents that are directly relevant to issues raised by the pleadings.

Supreme Court Rules 2000, rr 382, 386

Clyde Group Inc v Minister for Primary Industries and Water (No 2) [2009] TASSC 58 applied.

Judgment Number: [2024] TASSC 22

FORESTRY PRACTICES AUTHORITY, FORESTRY TASMANIA t/as SUSTAINABLE TIMBER TASMANIA and

1. This is an interlocutory application dated 6 February 2024, filed by the applicant in the originating proceedings. The originating application is an application for judicial review of a decision made on on 29 September 2023 to certify a forest practices plan pursuant to s 19(1)(a) of the Forestry Practices Act 1985 (the Plan). The Plan relates to a logging coupe in an area near Kermandie in the Huon Valley. On 31 January 2024, I made an order suspending the operation of the certification and granting injunctive relief: Bob Brown Foundation Inc v Spicer [2024] TASSC 19.
2. The applicant seeks amendments to the grounds set out in the originating application and orders for discovery by the first three respondents, along with a timetable. In response, the third respondent - Forestry Tasmania t/as Sustainable Timber Tasmania - has submitted a document setting out proposed orders, but which also contains, in effect, an application for orders for discovery as against the applicant. The first and second respondents have filed notices of submission but were heard on these applications. At the hearing, all respondents and the Attorney-General, who has intervened in the proceedings, were mostly aligned in their positions[1].
3. There is broad agreement that amendments should be allowed and discovery made on both sides; the dispute is as to the terms of the amendments and of the orders for discovery. I will start with the amendments. The first is to correct a typographical error in ground 2. There is no dispute about this and I make the order. The second application is to add a third ground as follows:

"The first respondent's decision to certify the Plan constituted the exercise of a personal discretionary power at the direction of another person, or alternatively, an exercise of statutory power for a purpose other than the purpose for which the power was conferred.

(a) The first respondent was acting under the express or implied direction of an employee of the second respondent in certifying the Plan, or alternatively, in not implying certification of the Plan to allow for the confirmation of the presence of Swift parrots in the coup, or any further or revised expert assessment of the significance of any part of the coup for Swift parrot breeding.

(b) Further and alternatively, the power to certify the Plan in the terms certified by the first respondent was exercised for a purpose other than the protection of endangered species and due care for the environment in the sustainable management of Tasmanian forests".

1. As to the amendments, the respondents contend that there should be greater particularity than is proposed, or at least, if the amendment is allowed as drafted, it should only be on the basis that particulars are ordered.
2. The starting point is s 17(2) of the Judicial Review Act 2000 (the JRA) which provides that an application may be made on any one or more of the grounds specified in pars (a)-(i). Sub section 2(e) provides that "the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made". By s 20, a reference to "improper exercise of power" is taken to include a number of things including an exercise of a power for a purpose other than the purpose for which the power is conferred, and the exercise of a personal discretionary power at the direction of another person; s 20(c) and (d). The proposed ground 3(a) relates to s 20(e); proposed ground 3(b) relates to s 20(c).
3. The next step is s 22 of the JRA which provides that applications for orders of review are to be made in the way prescribed by rules of court and are to set out the grounds of the application. Rule 777B of the Supreme Court Rules 2000, "Contents of application", does not contain prescriptions in relation to grounds, and relevantly to this case, only requires detail of the date and terms of the decision and the reasons for it. The applicant argues that having regard to that legislative scheme and what is regularly seen in judicial review applications, the proposed grounds are sufficient.
4. Ordinarily of course, the decision-maker supplies the relevant material to the court and/or the parties, being material on which the decision is based or to which the decision-maker had access, supplemented as may be necessary, and as far as is possible, by the parties from information in their possession.
5. It is accepted and understood by the respondents that proposed ground 3 in its entirety was prompted by an email chain from 28-29 September 2023, the last date being the date of the relevant decision. This became exhibit P1 in the proceedings for the interlocutory injunction on 29 January 2024.
6. The chain commences with a notification from the Department of Natural Resources & Environment to two people with the third respondent, and one with the second respondent, of "an audible sighting of Swift parrots" in the Kermandie region. One of the third respondent's people emailed one of the other original recipients, but included two other third respondent personnel, one of whom is Dion Robertson. He described himself as "Acting Coordinator Forest Products". Mr Robertson then replied to the then three correspondents - all with the third respondent - saying, "We are planning to certify this FPP today and harvest is scheduled to commence in a couple of weeks."
7. Further detail of the email chain is contained in pars 13 and 14 of my reasons dated 31 January 2024. [Those paragraphs are set out as an appendix to these reasons.] Ultimately, Mr Robertson forwarded the chain to the first respondent, Ms Spicer. It is the expression "We are planning to certify the FPP today" that has excited the applicant's concern and interest in adding ground 3.
8. The sufficiency of grounds of judicial review applications has been considered in a number of cases. The first point is that absence of particularity does not vitiate the application: Knuth v Minister for Resource Industries [1993] 2 Qd R 263. As to the required degree, in Jilani v Wilhelm [2005] FCAFC 269, 148 FCR 255 the court said:

"82 .... In Murchison v Keating [1984] FCA 125; 1984) 1 FCR 341 ... at 344-355, Toohey J referred to the need to provide some particularity of an assertion of the grounds put forward for review under the ADJR Act. His Honour cited the Full Court authority of Lamb v Moss [1983] FCA 254; (1983) 49 ALR 533 in which it was said at 564 that the Court must be able to see that the real basis of complaint is identified and seen to be at least arguable.

1. Toohey J also pointed at 344-345 to the inevitable result of fishing expeditions if bare allegations of the grounds stated in the ADJR Act are permitted. He said that the applicants' response to the request for particulars sought would enable the Court:-

'... to assess whether the application is one of substance or whether the applicant has simply resorted to the grounds in s 5(1) [of the AD(JR) Act] without having any arguable matter of complaint but hoping to find one through interlocutory steps.'

1. A similar approach was adopted by Derrington J in an application under the parallel provisions of the Judicial Review Act 1991 (Qld); see Knuth v Minister for Resource Industries [1993]2 Qd R 263 at 265."
2. In Knuth, reference was made to s 48 of the Judicial Review Act 1991 (Qld) which was in similar terms to s 38 of the JRA. Section 38 enables a court to dismiss an application if the court considers (among other things) that no reasonable basis for the application is disclosed, or the application is frivolous or vexatious or an abusive process of the court. At 264-265, Derrington J noted the bare minimum of what is required for the grounds of an application (that provision being similar to s 17 of the JRA) and went on to say:

"However in a practical sense some proper particularity will be required at an early stage because of two major considerations. The first is that according to [principle] the application cannot hope to obtain interlocutory relief without demonstrating a claim in such particularity that it can be property scrutinised by the court if it is challenged.

The second reason is that s 48(1) appears to anticipate that the grounds of the application should be stated in it with reasonable particularity because in giving the court power to stay or dismiss it for lack of any reasonable basis or because it is frivolous or vexatious, it must have been intended that it would have been couched in such particularity that the court could decide the point....In ordinary practice, the application should set out the full particulars of the grounds relied on so that the court can scrutinise it for sufficiency, and a failure to do so may attract an order to pay the costs of an application for particulars."

1. Quite often the sufficiency of a ground is readily made clear by reference to the decision-maker's reasons. Sometimes it is made clear by additional materials before the court by way of affidavit. In this case, there is the exhibit P1. It is true however, as the applicant points out, that in some cases it is only after the delivery of affidavits or written submissions that the details of the case "get fleshed out". There is then an opportunity to properly respond. Given the legislative scheme and the terms of the particular email from Mr Robertson, in my view the level of particularity in proposed ground 3(a) is sufficient. I would grant the application to that extent.
2. As to proposed ground 3(b), I am not entirely sure the purpose for which it is alleged the power is conferred by the Forest Practices Act is correct, or at least complete, but I do not see that as being of any moment. That issue is a question of law. As to the remainder, in Jilani, the failure of an applicant to particularise the purpose for which the power is alleged to have been exercised, other than the purpose for which the power was conferred, was seen to contribute to the demise of the amendment; see [77]-[81]. That factor does not seem to have been case specific, and I can see that as a matter of principle, a failure to specify an alleged extraneous purpose - even one to be drawn by inference - may present difficulty for a respondent.
3. I am satisfied that, in order for the respondents to properly know the case they meet, they are entitled to particulars of the purpose for which it is alleged the power exercised by the first respondent was in fact exercised. I would grant the application to include ground 3(b) in this ground, but order that those particulars be provided at an appropriate time.
4. That brings me to the question of discovery. Discovery in judicial proceedings is discretionary and is often not required because, as previously discussed, the documents evidencing the decision under review are usually before the court including a statement of reasons. Discovery can be ordered if the applicant has a good, at least arguable case, proof of which would be aided by discovery: Australian Society for Kangaroos Inc v Secretary, Department of Environment, Land Water and Planning [2018] VSC 88 at [21].
5. In Jilani (above) at [108], the Court said:

"The principles upon which discovery is ordered in judicial review applications were summarised by Merkel J in Carmody v McKellar [1996] FCA 791; (1996) 68 FCR 265 at 280:-

'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] FCA 15; (1979) 36 FLR 450, W.A. Pines Pty Ltd v Bannerman [1980] FCA 79; (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.'"

1. Here, what needs to be decided is the scope of discovery the parties are to make. I will start with what the applicant seeks from the first two respondents. As to the first respondent, the applicant wants discovery of all documents that were before her as delegate of the second respondent at the time of the making of the decision. What is sought from the second respondent are all documents in its possession, custody or control relevant to the decision to certify the Plan, including emails, electronic documents, file notes and any other discoverable documents. Mr Rapley submits that this scope of discovery is far too wide.
2. In Clyde Group Inc v Minister for Primary Industries and Water (No 2) [2009] TASSC 58, Blow J applied the "Peruvian Guano" test to discovery under r 386 of the Supreme Court Rules. That rule has now been amended, as has r 382, the latter now confining discovery to documents "that are directly relevant to the issues raised by the pleadings". There is good reason to hold that discovery in judicial review proceedings should also be so confined.
3. In short, I agree with Mr Rapley's submissions. There are many issues that need to be considered and matters that need to be taken into account in making a decision under s 19 of the Forest Practices Act. Instances given by Mr Rapley include geomorphology and visual landscape. I am satisfied that the scope of discovery should be limited to the question of the potential presence of the swift parrot in the coupe area along with nesting and feeding habitat in or nearby. I will attempt to craft appropriate orders accordingly but there should also be discovery which relates to ground 3.
4. As far as discovery from the third respondent is concerned, all correspondence, text messages and other communications in the period 1 August 2023 to 30 September 2023 is sought, defined as being from or to any person to or from either the first respondent or a representative of the second respondent relating to the Plan. The objection is made on the following bases.
   • Given discovery is sought from the first respondent, discovery from the third respondent is not necessary at all.
   • No specific documents are identified as likely to assess the applicant's case.
   • There is no justification advanced for the two month period.
   • There is no explanation as to why it is necessary to include the words "or a representative of the second respondent".
5. In my view there is some merit in at least part of these submissions. I see no difficulty in principle with the fact that mirrored discovery is sought, in part at least, from the first and third respondents. Documents can be lost, mislaid or overlooked. Nor do I see any difficulty with the time period provided there is some greater limitation as to the identity of the correspondents. As to the discovery sought against the applicant, the width of the proposed order the subject of objection was resolved in argument, and I will make an order accordingly.
6. For the foregoing reasons, the orders are as follows. The parties offered different timetables and I have attempted a compromise and made an allowance for the week that has passed since the hearing.

(1) The originating application is amended by deleting, in ground 2, the word "first" in the third line and substituting "second".

(2) The originating application is amended by the addition of ground 3 in terms of the draft attached to the letter of application dated 6 February 2024.

(3) Within fourteen (14) days after discovery by the respondents is complete, the applicant is to provide particulars of the purpose for which the power is alleged to have been exercised, other than the purpose for which the power is conferred.

(4) By 24 April 2024 the applicant make discovery verified by affidavit of all documents in its possession relating to the presence of swift parrots or swift parrot nesting habitat in the Forestry Coupe KD022C (the Coupe) in the period 1 September 2023 to date, comprising:

(a) The SMS referred to in paragraph 10 of the affidavit of Charley Gros, affirmed 11 December 2023;

(b) All correspondence, including emails and SMS and other messages, and notes held by Mr Gros relating to information he received which led to him changing the NVA record relating to the alleged sighting on 29 September 2023;

(c) All recordings of swift parrots referred to at paragraphs 11 and 13 of the affidavit of Mr Gros, affirmed 11 December 2023, and at paragraphs 2-3 and 6 of the affidavit of Mr Gros, affirmed 28 January 2024, and all documents, including correspondence, within its possession relating to an assessment of high and/or medium density nesting habitat carried out by Charley Gros, referred to at paragraph 23 of his affidavit, affirmed 11 December 2023.

(5) By 30 April 2024, the first respondent make discovery verified by affidavit of all documents in her possession, custody or control as delegate of the second respondent which relate to the making of the decision to certify Forest Practices Plan KAS0023, including emails, SMS and other messages, electronic documents, file notes and other discoverable documents, comprising:

(a) those to which she had or was required to have regard and which relate to the actual or potential impact of logging in the Coupe on the viability of the swift parrot as a species, including information as to reported sightings or audio detection of the bird in or within a five kilometre radius of the Coupe, and as to any nesting or foraging habitat of the bird within that area;

(b) all correspondence, including emails, SMS and other messages, to or from any servant or agent of the second and third respondents within the period 1 August 2023 to 30 September 2023 inclusive.

(6) By 30 April 2024, the second respondent make discovery verified by affidavit of all documents in its possession, custody or control which relate to the making of the decision to certify Forest Practices Plan KAS0023, including emails, SMS and other messages, electronic documents, file notes and other discoverable documents, comprising:

(a) those which relate to the actual or potential impact of logging in the Coupe on the viability of the swift parrot as a species, including information as to reported sightings or audio detection of the bird in or within a five kilometre radius of the Coupe, and as to any breeding or foraging habitat of the bird within that area;

(b) all correspondence, including emails and SMS and other messages, to or from the first respondent and any servant or agent of the third respondent within the period 1 August 2023 to 30 September 2023 inclusive.

(7) By 30 April 2024, the third respondent make discovery verified by affidavit of all correspondence that relates to the certification process for Forest Practices Plan KAS0023 comprising emails and SMS and other messages to or from the first and second respondents, between 1 August 2023 and 30 September 2023 inclusive.

(8) By 22 May 2024, the applicant file and serve any further affidavit evidence upon which it intends to rely.

(9) By 12 June 2024, the respondents file and serve any affidavit evidence upon which they intend to rely.

(10) By 26 June 2024, the applicant file and serve a court book.

(11) The hearing of the originating application be listed in consultation with the parties, but not before 22 July 2024, with an estimated hearing time of 1 to 2 days.

(12) The applicant file and serve written submissions 28 days before the hearing.

(13) The third respondent and the Attorney-General file and serve written submissions 14 days before the hearing.

(14) The applicant file and serve any submissions in reply seven days before the hearing.

(15) There be liberty to apply on short notice by letter in relation to the discovery process as ordered, and generally.

(16) The costs of these applications be costs in the cause, but this particular order is to lie in court for ten (10) days pending any submissions to the contrary.

"13 When cross-examined, Ms Spicer acknowledged she received a chain of emails sent to her from Dion Robertson, an employee of the respondent, at 11.52am on 29 September 2023. That chain is Exhibit P1. Relevantly, it starts with an email to Marie Yee, another employee of the respondent, and to an FPA person advising of a NVA note of an audio sighting of swift parrots at given coordinates, with a flock feeding on flowering "glob". Ms Yee is a conservation planner or similar. At 10.47am, Mr Robertson emailed Ms Yee, among others, saying they were planning to certify the plan that day, with harvest scheduled to commence in a couple of weeks. He said that neither the planner nor he had seen or heard any swift parrots during their visits to the coupe, but he would be back on Monday. He added that he would check out the location while he was there.

14 Ms Yee responded at 11.42am saying that they had been there on the previous Monday focusing on nesting habitat around the coupe area, and did not hear or see any 'swifties' but said that there was good bud at 'blue gum saddle', so the area would be attractive. Ms Yee said that "it would be good to send Andrew or Tim to spend a day in the area." Ms Spicer explained that the Blue Gum Saddle area was roughly 5 kilometres away from the coupe, and that she had interpreted the email as meaning 'attractive to swift parrots'. Ms Spicer explained that Andrew and Tim are ornithologists engaged in assisting the respondent in undertaking swift parrot surveys."

[1] Counsel for the Attorney-General made it clear that for the present time at least, the Attorney's concern related only to the issues raised by these applications.