"5. The Applicant seeks to argue that the failure to provide the Applicant with sufficient documents or information and/or to provide the Applicant with sufficient opportunity to be heard in relation to these matters constituted a denial of procedural fairness regardless of whether the documents or information was before or otherwise considered by the Minister when he made the Decision.

1. At the hearing of the application for discovery ... on 15 November 2006:

(a) the Respondents submitted that the terms of the order nisi (which adopts the grounds of judicial review set out in the originating application) preclude the Applicant from raising the argument referred to in paragraph 5 above because the entire ground set out in paragraph 13 of the originating application is confined by the words 'that Minister Bowler had before him or considered when he made the Decision' in paragraph 13(a); and

(b) the Applicant submitted that, although paragraph 13(b) of the originating application refers to and incorporates the documents and information set out in subparagraphs 13(a)(i) - (x), it does not also incorporate the words 'that Minister Bowler had before him or considered when he made the Decision' in paragraph 13(a) so that the Applicant is not precluded from raising the argument referred to in paragraph 5 above.

1. The Applicant does not accept the construction of paragraph 13 of the originating application advanced by the Respondents but, for the avoidance of doubt and so as to ensure that the Applicant is not precluded from raising the argument referred to in paragraph 5 above, the Applicant seeks to amend the Order Nisi ..."

15 The application for leave to amend was argued before me on 6 December 2006, on the basis that, if I were to allow the whole or any part of the proposed amendment, the application for discovery should be determined by reference to the notice of originating motion as amended.

16 Before considering the merits of the interlocutory applications, it is necessary to recount some of the background facts and circumstances. They are to be found principally in an affidavit of Nathan Bruce McMahon, a joint Managing Director of the applicant, sworn 4 August 2006.

17 The second respondents are the members of a joint venture known as the Rhodes Ridge Joint Venture ("RRJV"). The joint venturers have rights and obligations under an agreement, as amended and supplemented from time to time ("the Rhodes Ridge State Agreement"), which is set out in a schedule to the Iron Ore (Rhodes Ridge) Agreement Authorisation Act 1972 (WA). The third named second respondent, Hamersley Resources Ltd, is a subsidiary of Rio Tinto Limited, which is the manager of RRJV.

18 Until August 2005, the assets of RRJV included E46/209, an exploration licence granted under the Mining Act. According to the second respondents:

(a) The land the subject of E46/209 was previously the subject of E46/8, also an exploration licence granted under the Mining Act. Further, before the grant of E46/8, the land in question was the subject of rights of occupancy held by RRJV under the Mining Act 1904 (WA) (repealed) in respect of Temporary Reserve 5003H.

(b) The Rhodes Ridge State Agreement has never applied to the land the subject of E46/209. However, by a letter dated 13 November 1979 from the then Premier of Western Australia to Texasgulf Australia Ltd (the then holder of Hamersley Resources Ltd's interests in RRJV), the then Premier confirmed the State's intention, in due course, to negotiate an amendment to the Rhodes Ridge State Agreement so that it applied to Temporary Reserve 5003H.

19 Before August 2005, RRJV had invested $587,063 in exploration work on the land the subject of E46/209. This work revealed an inferred resource of approximately 120M tonnes of high phosphorus brockman iron ore. The resource is known as the "Shovelanna resource".

20 E46/209 was due to expire on 26 August 2005. By s 61 of the Mining Act, RRJV was entitled to apply for its renewal. On 28 July 2005, in anticipation of making a renewal application, RRJV prepaid the rental for the contemplated renewed term to the Department. On 19 August 2005, RRJV sent an application for renewal to the Mining Registrar at Marble Bar. The application was not received, however, at the Mining Registrar's office before close of business on 26 August 2005, and, in consequence, E46/209 expired at midnight on that date.

21 On 29 August 2005, the applicant made application for an exploration licence E46/678 under the Mining Act. The land the subject of application E46/678 included the Shovelanna resource.

22 On 3 September 2005, RRJV made application for mining leases M46/437 to 46/440 ("the Rio Applications") under the Mining Act. The land the subject of those applications included the Shovelanna resource. The applicant has lodged objections to the grant of the Rio Applications.

23 On 7 October 2005, FMG Pilbara made application for an exploration licence, E46/682, under the Mining Act. The land the subject of that application includes the Shovelanna resource.

24 On 10 October 2005, BHP Billiton Minerals Pty Ltd, Itochu Minerals & Energy of Australia Pty Ltd and Mitsui Itochu Iron Pty Ltd made application for an exploration licence, E46/680, under the Mining Act. The land the subject of that application includes the Shovelanna resource.

25 At all material times before 3 February 2006, the Honourable Alan Carpenter MLA was the Minister responsible for the administration of the Mining Act. At all material times after 3 February 2006, the Honourable John Bowler MLA was the responsible Minister.

26 The Honourable Mr Carpenter was the responsible Minister in consequence of his being, relevantly, the Minister for State Development. The Honourable Mr Bowler became the responsible Minister in consequence of his being appointed, relevantly, the Minister for Resources and Assisting the Minister for State Development. He was not the Minister assisting the Minister for State Development before 3 February 2006. The Office of Minister for Resources and Assisting the Minister for State Development was created when Mr Bowler was appointed on that date.

27 Although at all material times after 3 February 2006, the Honourable Mr Bowler was the Minister responsible for the administration of the Mining Act, he was not at any material time the Minister with responsibility for the Rhodes Ridge State Agreement or any other iron ore State agreements. At all material times, the Honourable Mr Carpenter, in his capacity as Minister for State Development, had responsibility for those agreements. Each Minister, was, however, assisted by the Department in the administration of those Acts or State agreements for which he was responsible. See Government Gazette, 21 February 2006, No 37, at pages 853 - 854, 864.

"The Minister may -

(a) by notice served on the mining registrar or the warden, as the case requires, terminate an application for a mining tenement before the mining registrar or the warden has determined, or made a recommendation in respect of, the application; or

(b) refuse an application for a mining tenement,

if in respect of the whole or any part of the land to which the application relates -

(c) the Minister is satisfied on reasonable grounds in the public interest that -

(i) the land should not be disturbed; or

(ii) the application should not be granted;

29 Section 10(1) of the Mining Act provides that the Act shall be administered by the Minister. By s 10(2):

"The Minister -

(a) shall be a corporation sole with perpetual succession and shall have an official seal; and

(b) may, in his corporate name, acquire, hold, lease and otherwise dispose of real and personal property, and may sue and be sued in that name."

30 Ministers of the Crown are not common law corporations sole (Hubbard Association of Scientologists International v The Attorney-General for the State of Victoria [1976] VicRp 10; [1976] VR 119 at 123 - 125), but they are frequently created corporations sole under statute.

31 In Salmond on Jurisprudence, 12th ed, 1966, the nature of a corporation sole, and the points of distinction between a corporation aggregate and a corporation sole, are explained, at pages 66 - 68:

"Corporations are of two kinds, distinguished in English law as corporations aggregate and corporations sole. 'Persons', says Coke, 'are of two sorts, persons natural created of God, and persons incorporate or politique created by the policy of man (and therefore they are called bodies politique), and those be of two sorts, viz, either sole, or aggregate of many.' A corporation aggregate is an incorporated group of co-existing persons, and a corporation sole is an incorporated series of successive persons. The former is that which has several members at a time, while the latter is that which has only one member at a time. Corporations aggregate are by far the more numerous and important. Examples are a registered company, consisting of all the shareholders, and a municipal corporation, consisting of the inhabitants of the borough. Corporations sole are found only when the successive holders of some public office are incorporated so as to constitute a single, permanent, and legal person. The Sovereign, for example, is said to be a corporation of this kind at common law, while the Postmaster General, the Solicitor to the Treasury, the Secretary of State for War, the Minister of Town and Country Planning, and the Minister of Education have been endowed by statute with the same nature.

... In the case of corporations sole, the purely legal nature of their personality is equally apparent. The chief difficulty in apprehending the true nature of a corporation of this description is that it bears the same name as the natural person who is its sole member for the time being, and who represents it and acts for it. Each of them is the Sovereign, or the Solicitor to the Treasury, or the Secretary of State for War. Nevertheless under each of these names two persons live. One is a human being, administering for the time being the duties and affairs of the office. He alone is visible to the eyes of laymen. The other is a mythical being whom only lawyers know of, and whom only the eye of the law can perceive. He is the true occupant of the office; he never dies or retires; the other, the person of flesh and blood, is merely his agent and representative, through whom he performs his functions. The living official comes and goes, but this offspring of the law remains the same for ever."

32 A corporation sole therefore has two capacities; that of the corporation and that of the natural person. See McVicar v Commissioner for Railways (NSW) [1951] HCA 50; (1951) 83 CLR 521, per Dixon, Williams, Fullagar and Kitto JJ at 534. In Crouch v Commissioner for Railways (Qld) [1985] HCA 69; (1985) 159 CLR 22, Mason, Wilson, Brennan, Deane and Dawson JJ identified, at 35, but did not resolve, the conceptual difficulties involved in the notion that an artificial entity, created by statute, can have both its own capacity and the natural capacity of the natural person officeholder who represents it. Their Honours added:

"It suffices, for present purposes, to emphasize that one must, in the case of a corporation sole, distinguish between the transient natural person who happens to hold the particular office at a particular time and the continuing corporate identity which the law attributes to the office. A particular incumbent of the office is, for so long as he or she holds it, clothed by the law with the personality, powers and functions of the corporate entity. It is the office and not the particular human incumbent which is incorporated however and, even though the powers and functions of the office may lie dormant, the artificial corporate entity does not cease to exist when, by reason of a vacancy, the office lacks visible representation."

33 It is unnecessary, in determining the applications for leave to amend and for discovery, to consider the relationship under the Mining Act between the natural person who for the time being holds the office of the Minister responsible for the administration of that Act, on the one hand, and the continuing corporate identity attributable to the office of Minister, on the other.

34 On or about 21 April 2006, the first respondent decided that the applicant's application for E46/678 should be terminated pursuant to s 111A(1)(c)(ii) of the Mining Act. In a letter sent to the applicant's solicitors on 21 April 2006, the first respondent said that he had made the decision "following [his] careful consideration of the submissions and counter submissions" of each of the parties.

35 In a "media statement" dated 27 April 2006, the first respondent gave reasons for his decision. The statement provides, relevantly:

" ...

Each of the three reasons I will elaborate upon was sufficient on its own for me to be satisfied that the public interest was best served by terminating the Cazaly Resources [that is, the applicant's] application.

The State's Iron Ore Policy

Amongst the materials provided to me by the Department of Industry and Resources (DoIR) was the following advice:

' ... Parliament intended that Iron is a mineral for which special treatment be accorded under the Act...Parliament wanted the Minister to be in a position to exercise a much broader discretion in relation to iron tenements...this would have the effect of encouraging exploration for iron ore. ...and the life of these mining operations can last for decades, and in fact may need to last for decades to make the capital investment economically feasible...there is logical support for a special provision that allows an exploration licence for iron to be held on less onerous terms than licences for other minerals...'

The policy recognises the need for long term tenure to underpin long-term contracts. Iron ore mining in the volumes developed in the Pilbara can only be carried out with extensive infrastructure such as rail and ports. In order to invest in such extensive capital infrastructure, companies need the security of long-term contracts supported by secure tenement holdings.

Implicit in this long-standing policy is the certainty that some tenements containing iron ore deposits will not be mined for a lengthy period of time from the time of discovery.

This policy has been maintained by successive governments for many decades and it is my view that it has been a significant reason for the Pilbara region being the world's most prolific exporter of iron ore.

Any company mining iron ore in Western Australia needs to have access to long-term reserves in order to secure their future viability. For example, a company that has access to known reserves can more quickly respond to increases in demand.

Whilst this policy is under review, I am of the view that to arbitrarily deviate from its objectives and present method of implementation would be detrimental to the state's sovereign risk profile and therefore contrary to the public interest.

On reviewing the material I concluded that the objectives of the State's iron ore policy and therefore the public interest were best achieved by terminating the Cazaly Resources application.

Promoting Investment in Western Australia

I consider that the public interest is best served by policies and decisions that promote investment.

Investment in the resources industry is promoted when explorers can be confident that their ownership of resources they have discovered is not jeopardised, with consequences disproportionate to minor oversights or actions. This is particularly true where a tenement holder has clearly signalled their intentions to government by, for example, paying rent in advance.

I concluded that goals of promoting investment in Western Australia and therefore the public interest were best served by terminating the Cazaly Resources application.

Fairness

The effective administration of Ministerial discretion under the Western Australia Mining Act requires that the outcomes be consistent.

In considering this matter I was particularly focused on ensuring the answer I came to would be the same were the circumstances of the parties to be reversed. I have no doubt that this would be the case.

In other words, if the roles of Rhodes Ridges [sic] JV and Cazaly Resources were to be reversed, I would have found in favour of Cazaly Resources.

Accordingly I am satisfied that the public interest was best served by terminating the Cazaly Resources application."

36 The material before the first respondent, when he made his decision, included four written submissions from the applicant, four written submissions from the second respondents and a written submission from the Department.

37 The second respondents' first submission ("the First Rio Submission") is dated 21 September 2005, and states, in par 21:

"By letter dated 13 November 1979 to Texasgulf Australia Ltd (who previously held the stake of Hamersley Resources Limited in RRJV) the then Premier of Western Australia confirmed that it was his intention, in due course, to negotiate and effect a variation of the Rhodes Ridge State Agreement to bring Temporary Reserve 5003H, among others, under its operation (TR 5003H included the ground the subject of E46/209). RRJV have been cognisant of this assurance and have been relying on it to plan an orderly reorganisation of RRJV tenure at the appropriate time. The issue of tenements held by RRJV is also the subject of our ongoing discussions with you over the last 6 months concerning the various State Agreements to which members of the RTIO group of companies are party and which are reflected in the Statement of Principles that is being finalised for execution. These discussions, consistently with the 1979 letter, have been based on the acknowledged need to regard the development of RRJV on an integrated mine basis by bringing all RRJV tenure within the ambit of the Rhodes Ridge State Agreement. They also recognise the need to view, at least in part, the development of these resources in the context of RTIO's broader mining operations in the Pilbara and in the East Pilbara in particular."

38 By letter dated 16 November 2005, the applicant's solicitors wrote to Mr Roy Burton, the Director, Mineral & Title Services Division, of the Department, in relation to various documents referred to in the First Rio Submission. The letter said, amongst other things:

"The [First Rio Submission] refers to a number of documents in support of Rio Tinto's application pursuant to s 111A. In order to properly consider the [First Rio Submission], the Minister needs to be able to review these documents. Furthermore, in accordance with the rules of procedural fairness, our client is entitled to review these documents in order to properly understand the case that it has to meet and in order to be able to respond to the [First Rio Submission]."

The letter requested, in par 5, that specified documents referred to in the First Rio Submission including:

"any file notes of the 'ongoing discussions over the last 6 months' and drafts of the 'Statement of Principles' referred to in par 21 [of the First Rio Submission]",

39 By letter dated 21 November 2005 to Mr Burton, Mr Mark Sokolich, the chief counsel of Rio Tinto Limited, wrote to Mr Burton in relation to the letter dated 16 November 2005 from the applicant's solicitors:

" ...

In relation to item 5 of [the applicant's solicitors'] letter, we note that the matters covered in the discussions referred to are of significant commercial sensitivity and include many matters that are of no relevance to our request that the Minister terminate or refuse the above application under s 111A of the Mining Act. Accordingly, we request that you first provide to us copies of any documents the Department proposes to disclose to [the applicant's solicitors] in response to Item 5 so that we may have the opportunity to peruse them and, if necessary, object to the disclosure. At that time it may also be necessary to discuss the need to obtain undertakings from [the applicant's solicitors] to preserve the confidentiality of the matters the subject of the discussions referred to.

... "

40 By letter dated 2 December 2005, the applicant's solicitors wrote to Mr Sokolich in, relevantly, these terms:

" ...

We refer to your letter to Mr Roy Burton of the Department of Industry & Resources dated 21 November 2005.

To address your concerns in relation to the commercially sensitive nature of the documents referred to paragraph 5 of our letter dated 16 November 2005, our client proposes that the recipients of those documents sign a confidentiality agreement in the form annexed hereto.

Please confirm whether you will consent to the disclosure of the information upon receipt of an executed confidentiality agreement in these terms."

41 By letter dated 8 December 2005 from Mr Burton to the applicant's solicitors, Mr Burton asserted:

" ...

Regarding your request (No 5 in your letter) for copies of any file notes of the 'ongoing discussions after the last 6 months' and drafts of the 'Statement of Principles' referred to in paragraph 21 of [the First Rio Submission], I have been informed that, to date, searches of this Department's records have uncovered no documents that in our view would fall within the terms of your request or impact on the Minister's consideration of [the second respondents'] request that the above application be refused in the public interest."

42 By letter dated 14 December 2005, Mr Sokolich informed the applicant's solicitors that:

"The provision of the documents requested in paragraph 5 of your letter of 16 November 2005 is a decision to be made by the Department and outside the control of Rio Tinto. Given the Department's response, the offer of a confidentiality undertaking is redundant."

43 In a letter dated 2 February 2006 from the applicant's solicitors to Mr Burton, the applicant's solicitors reiterated their request for a copy of the Statement of Principles, together with any file notes of discussions and correspondence between the parties relating to that issue, and asserted, again, that without those documents the applicant was not able properly to understand and respond to par 21 of the First Rio Submission. The letter also records other matters, including the following:

"by letter dated 8 December 2005 you stated that 'searches of this Department's records have uncovered no documents that in our view would fall within the terms of your request or impact on the Minister's consideration of [the second respondents'] request that the above application be refused in the public interest'. In a subsequent telephone discussion you have indicated that:

(i) the Department is of the view that these documents are not relevant to the Minister's consideration of RRJV's section 111A application;

(ii) the Department will therefore not supply the documents requested; and

(iii) the RRJV continues to maintain that this material is relevant;

We have requested that the RRJV provide us with this information. The RRJV has refused to do so;"

44 In par 71 of his affidavit, Mr McMahon deposes that he has been informed by Robert Edel, the applicant's solicitor, and believes, that on or about 14 February 2006, Mr Stevens of the Department told Mr Edel that:

"(a) he had advised [the second respondents] that he considered that [the applicant] was entitled to see any documents referred to by [the second respondents] in [their] submissions;

(b) [the second respondents] had advised him that [the second respondents] [were] not willing to disclose to [the applicant] the Statement of Principles or other documents relating to the negotiations referred to in paragraph 21 of the First Rio Submission;

(c) he had suggested to [the second respondents] that paragraph 21 should therefore be deleted from the First Rio Submission;

(d) [the second respondents] had advised him that they were not willing to delete paragraph 21 from the First Rio Submission because in [the second respondents'] view it was relevant; and

(e) the Department had obtained legal advice from the State Solicitor's Office in relation to the scope of the Minister's power under section 111A of the Act which was to the effect that the Minister could take into account any matters that he considered relevant and that the Minister was not confined to considering matters directly related to application E46/678."

45 Neither the Statement of Principles nor any other documents relating to the negotiations referred to in par 21 of the First Rio Submission were provided to the applicant before the first respondent made his decision. Also, no other information relating to the Statement of Principles or those negotiations was provided to the applicant before the decision was made. The applicant did, however, make a response to various issues raised in par 20 - 23 of the First Rio Submission. See pars 4, 5, 13(i) and 128 - 130 of the applicant's submission dated 15 December 2005, which is annexure NBM7 to Mr McMahon's affidavit.

46 On 26 April 2006, about five days after the first respondent made his decision to terminate the applicant's application for E46/678, the applicant's solicitors made an application to the Director of the Department under the Freedom of Information Act 1992 (WA) for access to the Statement of Principles, together with any file notes of discussions and correspondence between the parties relating to that statement. By letter dated 14 June 2006, the Department's acting freedom of information co-ordinator informed the applicant's solicitors that the Department was in possession of certain documents within the scope of the request for access, but that access was denied. The documents in question were described, relevantly, as follows:

The applicant's solicitors then sought internal review of the decision of the acting freedom of information co-ordinator. The internal review was undertaken by the principal policy officer of the Department. On 31 July 2006 the applicant's solicitors were informed, as follows:

"The reviewer confirms that no other documents were considered to have fallen within the scope of the FOI application, but notes that the Schedule of Documents accompanying [the Department's] notice of decision is somewhat abridged in its description of the relevant documents. The full content of the scope is as follows:

Ministerial regarding Rio Tinto (includes version of Secondary processing options document)

47 By letter dated 23 March 2006, Mr Burton informed the applicant's solicitors that:

"A review of the potential royalty outcome from iron ore production under different ownerships of the subject ground has identified potential variances. This information will be provided to the Minister for consideration in his assessment of the public interest in this matter."

The letter set out the Department's estimate of the difference in royalties likely to be received by the State depending on whether the Shovelanna resource was held and developed by the applicant, on the one hand, or RRJV or BHP Billiton, on the other. The estimate indicated that the royalties would be materially less if the Shovelanna resource were to be held and developed by the applicant. Mr Burton invited submissions from the applicant in relation to the royalty issue, including the assumptions on which the estimate was made.

48 By letter dated 27 March 2006, the applicant made a submission in relation to the royalty issue. The letter said, relevantly:

1. In substance, the Letter [that is, Mr Burton's letter of 23 March 2006] draws attention to the fact that pursuant to the memorandum of understanding with BHP Billiton (BHPB) Cazaly would pay a royalty on iron ore produced from E46/678 that is calculated by reference to the price paid for the iron ore at the mine gate, which may be less than the price received by BHPB when that iron ore is sold to an international customer pursuant to an export contract.
2. Cazaly has always envisaged, and believes that it is fair and reasonable, that the royalty payable to the State on any iron ore mined from E46/678 would ultimately be based on the full international iron ore price.

1. Having considered the matters raised in the Letter and taken advice, it appears that the royalty that will be payable to the State based on Cazaly's Memorandum of Understanding with BHPB (the MOU) would lead to a royalty being paid which is lower than the royalty that would be payable if the ore were to be sold by the tenement holder directly to an international customer pursuant to an export contract.

1. As stated above, Cazaly believes that the State should receive a royalty on ore produced from E46/678 and ultimately exported that is based on the full international benchmark iron ore price.
2. To achieve this end, a project specific regulation could be implemented that required Cazaly to pay a royalty on iron ore produced from E46/678 that is based on the full international iron ore price, regardless of the price that it receives from BHPB or any other purchaser. Such regulation would simply deem the price paid for the iron extracted from E46/678 to be equivalent to the international benchmark iron ore price (for example, the price paid for Mount Newman lump and fine ore sold to Japanese steel mills on an f.o.b. basis as reported in the Tex Report).
3. Alternatively, a regulation of general application could be enacted require [sic] iron ore miners generally to pay a royalty on the basis of the international benchmark iron ore price.

1. If considered necessary, Cazaly would also be prepared to enter into a binding deed (or State agreement) with the State whereby Cazaly agrees to pay a royalty based on the full international ore price. Such an agreement could be executed quickly if necessary and operate either before the implementation of any project specific regulation or in lieu of such a regulation.

...

In summary, the amount of royalty which the State receives in respect of iron ore from the Shovelanna Tenement, or any other iron ore tenement, is entirely in the hands of the Government. The Government can, by way of simple regulatory change, ensure that the royalty received is not dependent upon whether the holder of the tenement exports the ore itself or sells it to another party for export."

The meeting between the Honourable Mr Carpenter and Mr Leigh Clifford

49 By letter dated 2 September 2005, Hamersley Resources Ltd wrote to the Honourable Mr Carpenter (who, as I have mentioned, then held the office of the Minister responsible for the administration of the Mining Act). In the letter, Hamersley Resources Ltd informed the Minister of RRJV's loss of E46/209 and the applicant's application for E46/678. The letter stated that its purpose was to "foreshadow a request that you exercise your discretion to refuse [the applicant's] application under s 111A(1)(c)(ii) of the Mining Act".

50 On or between about 6 and 8 September 2005 there was a meeting in London between the Honourable Mr Carpenter and the Chief Executive Officer of Rio Tinto Limited, Mr Leigh Clifford. Some details in relation to that meeting were mentioned by Mr Carpenter in a radio interview on 27 April 2006 (six days after the first respondent's decision) with Ms Geraldine Mellet. A transcript of the interview records, relevantly:

" ...

GERALDINE MELLET: How much of this is your decision?

ALAN CARPENTER: It's not my decision. What happens there ... what happened is that the incidents around which the decision has been made occurred in August last year. There was immediately some level of correspondence from the ... from Rio to the Department. Once all the correspondence and the objections from the ... from Rio and the counter position from Cazaly had come forward, they then exchanged with each other, so that each can comment on the other's position. When all that's come through, it's aggregated and provided to the Minister and that was given to John, not me. John ...

GERALDINE MELLET: But in the time that you were responsible, did you actually have meetings with Rio Tinto?

ALAN CARPENTER: No.

GERALDINE MELLET: You had no discussions with Rio Tinto?

ALAN CARPENTER: Yeah, well the day that I found out about it, I was actually in Rio's office in London. I was on a visit to Europe for the Offshore Europe Oil and Gas Conference, and as part of that pre-arranged schedule I was visiting the Rio office. And that was the day, as I understand it, my recollection, that was the day that Lee [sic] Clifford (*), the Rio Tinto CEO found out about it as well.

GERALDINE MELLET: What did he say to you?

ALAN CARPENTER: He just told me what had happened and that it would be a matter of some contention. I said, well, my responsibility, as I recall, my responsibility in this matter will be to act properly and fairly and I will. And that's where we left it."

The issues in dispute in the interlocutory applications

51 The issues in dispute in the interlocutory applications are:

(a) Whether the proposed amendment to par 13 of the notice of originating motion should be allowed.

(b) Whether documents relating to the "Statement of Principles" referred to in par 21 of the First Rio Submission should be discovered, even if they were not before the first respondent or otherwise considered when he made the decision.

(c) Whether documents relating to the meeting between the Honourable Mr Carpenter and Mr Clifford, to the extent they relate to the subject matter of the first respondent's decision, should be discovered, even if they were not before the first respondent or otherwise considered when he made the decision.

(d) Whether the affidavit of discovery sworn on 19 September 2006 by Mr Stevens, as to the documents which the first respondent had before him or otherwise considered when he made the decision, is adequate.

Whether the proposed amendment to par 13 of the notice of originating motion should be allowed: the applicable test and approach

52 This Court has power, under O 56 r 6 of the Rules of the Supreme Court 1971 (WA) read with r 5 of the Supreme Court (Court of Appeal) Rules 2005 (WA), to allow an amendment to the grounds of an order nisi for a prerogative writ.

53 In Inland Revenue Commissioners v National Federation of Self-Employed & Small Businesses Ltd [1982] AC 617, Lord Diplock explained, at 642 - 644, the purpose of the order nisi stage of an application for a prerogative writ:

"Its purpose is to prevent the time of the Court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.

...

The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the Court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the Court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief. The discretion that the Court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application."

That passage from the speech of Lord Diplock was approved by the Full Court of the Supreme Court of Western Australia in Talbot v Lane (1994) 14 WAR 120, per Malcolm CJ at 152 - 153 (with whom Kennedy and Ipp JJ agreed, at 157).

54 Subsequent authorities have accepted that an applicant for an order nisi must have an "arguable case". It appears that an applicant for an order nisi in respect of quasi-criminal proceedings bears a greater burden. In Re Capobianco; Ex parte Castelli, unreported; SCt of WA (Parker J); Library No 980567; 25 September 1998, Parker J said, at page 6:

"It will be apparent from this brief reference to settled authority that the threshold test which the applicant must satisfy is quite low. It is sufficient that the case is merely capable of being argued and it is not necessary for the applicant to show that the case have some reasonable or real prospect of success; in this respect contrast the test where prerogative relief is sought in respect of quasi-criminal proceedings, as to which see Re Lawrence; Ex parte Moltoni, unreported; SCt of WA (Murray J); Library No 980010; 16 January 1998 at 7, adopting and adapting Dempster v National Companies and Securities Commission (1993) 9 WAR 215, at 216."

Some different formulations, in other cases, as to what constitutes an "arguable case", are referred to by McLure J (as her Honour then was) in Re Anastas; Ex parte Welsby [2001] WASC 178 at [15] - [17]. Also see Re MacTiernan; Ex parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264, where McLure J said, at [47]:

"The applicant must establish an arguable case. On any view that requirement will not be satisfied if the case is so clearly untenable that it cannot succeed (being the test in General Steel Industries Inc v Commissioner for Railways of New South Wales [1964] HCA 69; (1964) 112 CLR 125 at 130). I do not propose to reconsider the different formulations of the test applied in this Court to which I referred in Re Anastas; Ex parte Welsby [2001] WASC 178. I will apply the General Steel test suitably adapted to reflect the fact that there must be evidence to support the factual findings for which the applicant contends."

55 In my opinion, the test to be applied and the approach to be taken at the order nisi stage, where prerogative relief is not sought in respect of quasi-criminal proceedings, are, in general, those approved by the Full Court in Talbot. If, however, the application raises matters of factual and legal complexity, a "quick perusal of the material then available" may not be sufficient to determine whether an applicant has a reasonably arguable case. Some greater scrutiny may be necessary. The observations of McLure J in Re MacTiernan are not inconsistent with Talbot. The test and approach at the order nisi stage also apply to an application for leave to amend the grounds of an order nisi, at least where the application is made before its return. If the proposed amended ground is so clearly untenable that it cannot succeed, leave to amend should not be granted. Also, there must be evidence to support any factual findings which the applicant asserts in the proposed amended grounds.

Whether the proposed amendment to par 13 of the notice of originating motion should be allowed: the relevant principles of procedural fairness

56 Absent a clear legislative intent to the contrary, a statutory power must be exercised with procedural fairness to parties whose interests might be adversely affected by its exercise. See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 27 - 28 [81] - [83].

57 The application of the law relating to procedural fairness in connection with decision-makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision-making. Rules developed in the context of judicial decision-making cannot be applied automatically to administrative decision-making. See Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 343 - 344 [4]; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, per Gleeson CJ and Gummow J at 538 [99] - [100], per Hayne J at 561 - 566 [177] - [192]; Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at 460 [70].

58 In Kioa v West (1985) 159 CLR 550, there was a denial of procedural fairness because the decision in question was made upon information obtained by the decision-maker from another source, without giving the applicant an opportunity to respond to that information. Mason J said, at 582 - 583:

"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at 109; Salemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396 at 419; R v MacKellar; Ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461 at 476; Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 at 498-499; FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 at 360, 376-377; Annamunthodo v Oilfields Workers' Trade Union [1961] AC 945. ...

The reference to 'legitimate expectation' makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest. Take, for example, an application for a renewal of a licence where the applicant, though he has no legal right or interest, may nevertheless have a legitimate expectation which will attract the rules of natural justice. In Salemi (No 2) (at 404) Barwick CJ expressed the view that the expression 'legitimate expectation' adds little, if anything, to the concept of a right. However, later decisions demonstrate that the concept of 'legitimate expectation' extends to expectations which go beyond enforceable legal rights provided that they are reasonably based: Heatley (at 508-509); FAI (at 348, 351-352, 369, 412); Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] UKPC 2; [1983] 2 AC 629 at 636. The expectation may be based on some statement or undertaking on the part of the authority that makes the relevant decision ... Alternatively, the expectation may arise from the very nature of the application, as it did in the case of the application for a renewal of a licence in FAI ... or from the existence of a regular practice which the person affected can reasonably expect to continue: Council of Civil Service Unions v Minister for Civil Service [1985] 1 AC 374 at 401. The expectation may be that a right, interest or privilege will be granted or renewed or that it will not be denied without an opportunity being given to the person affected to put his case."

59 In Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648, Deane J said, at 651 - 652:

"The notion of a 'legitimate expectation' which gives rise to a prima facie entitlement to procedural fairness or natural justice in the exercise of statutory power or authority is well established in the law of this country (see, eg, FAI Insurances Ltd v Winneke ((1982) [1982] HCA 26; 151 CLR 342, at 348, 351, 361 - 362, 369, 376, 390 - 391, but cf at 412). The notion is not, however, without its difficulty. For one thing, the word 'legitimate' is prone to carry with it a suggestion of entitlement to the substance of the expectation whereas the true entitlement is to the observance of procedural fairness before the substance of the expectation is denied (see, eg, Salemi v MacKellar [No 2] ((1977) [1977] HCA 26; 137 CLR 396, at 452); Kioa v West ((1985) [1985] HCA 81; 159 CLR 550, at 563)). In that regard, there is much to be said for preferring the phrase 'reasonable expectation' which has often been used in judgments in this Court. For another thing, the vagueness of the phrase 'legitimate expectation', which enables it to be used as a convenient label for a broad category of circumstances which will give rise to a prima facie obligation to accord procedural fairness, may convey an impression of comprehensiveness with the result that the absence of an identified legitimate expectation is wrongly seen as a legal mandate for disregarding procedural fairness in any case where no legal right in the strict sense is involved. Regardless of whether one can identify a right in the strict sense or a legitimate expectation, the requirements of procedural fairness must be observed in any case where, by reference to 'the particular statutory framework' (see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (Cth) [1963] HCA 41; (1963) 113 CLR 475, at 504), it is proper to discern a legislative intent that the donee of governmental executive power or authority should be bound by them. There is a strong presumption of such a legislative intent in any case where a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in an individual capacity (as distinct from merely as a member of a section of the general public). The rationale of that strong presumption is to be found not so much in sophisticated principle as in ordinary notions of what is fair and just."

60 The concept of "legitimate expectation" referred to by Mason J in Kioa and Deane J in Haoucher (and in numerous other authorities) was considered in Ex parte Lam. McHugh, Gummow, Hayne and Callinan JJ held that "legitimate expectation" has limited utility and scope in consequence of it now being accepted that, absent a clear legislative intention to the contrary, a decision-maker must comply with the rules of procedural fairness. McHugh and Gummow JJ, in their joint judgment, at 27 [81], referred with approval to the dissenting judgment of McHugh J in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 311 - 312, and the judgment of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 39. In Quin, Brennan J said:

"So long as the notion of legitimate expectation is seen merely as indicating 'the factors and kinds of factors which are relevant to any consideration of what are the things which must be done or afforded' to accord procedural fairness to an applicant for the exercise of an administrative power (Macrae v Attorney-General (NSW) (1987) 9 NSWLR 268 at 285, per Mahoney JA), the notion can, with one important proviso, be useful. If, but only if, the power is so created that the according of natural justice conditions its exercise, the notion of legitimate expectation may usefully focus attention on the content of natural justice in a particular case; that is, on what must be done to give procedural fairness to a person whose interests might be affected by an exercise of the power. But if the according of natural justice does not condition the exercise of the power, the notion of legitimate expectation can have no role to play. If it were otherwise, the notion would become a stalking horse for excesses of judicial power."

Also, in Ex parte Lam, see the judgment of Hayne J at 37 - 39 [120] - [122], and the judgment of Callinan J at 45 - 48 [140] - [148].

61 Fairness is essentially a practical concept. It is not abstract in nature. The law of procedural fairness is concerned to avoid practical injustice. See Ex parte Lam, per Gleeson CJ at 13 - 14 [37].

62 The rules of procedural fairness require that decisions be made free from a reasonable apprehension of bias. The general test for apprehended bias is whether a hypothetical fair-minded person who is properly informed as to:

(a) the statutory context and decision-making structure;

(b) the matters to be decided; and

(c) the objective facts which are material to the allegation of apprehended bias,

might reasonably apprehend that the decision-maker might not bring an independent and impartial mind to the resolution of the decision he or she is required to make. See Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982 at 989 - 990 [27] - [29].

63 The application of this principle requires two steps. First, the identification of what it is said might lead the decision-maker to decide the matters in issue other than on their merits. Secondly, an articulation of the logical connection between the matters in issue and the apprehended fear that those matters will not be decided on their merits. See Ebner at 345 [8].

64 The question whether a decision-maker might not bring an independent and impartial mind to the resolution of the relevant issues is one of possibility (real and not remote), not probability. See Ebner at 345 [7]. "Apprehended bias must, however, be quite firmly established": a vague sense of unease or disquiet is not enough. See R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553; Jia Legeng at 549 [135].

65 The potential significance, in certain circumstances, of an ex parte communication between one party and the decision-maker, in relation to the "hearing rule" and the "bias rule", was considered by Brennan J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 58. His Honour said:

"Where a matter submitted to an open inquiry involves a conflict between the interests of parties and the decision is apt to affect some parties advantageously and to affect others detrimentally, an ex parte communication between one party and the decision-maker offends the requirements of natural justice: it deprives the opposing party of an opportunity to be heard on a matter affecting his interests and the integrity of the administrative process is eroded by partiality on the part of the decision-maker. If the fact of the communication is at first kept secret and later becomes known, there is an inevitable appearance of bias in the decision-maker. The general rule, founded firmly on the requirements of natural justice, is that information furnished by an ex parte communication must not be taken into account without giving the parties whose interests might be affected by the information an opportunity to correct or contradict it."

66 In McLachlan v Australian Securities and Investments Commission [1999] FCA 244; (1999) 85 FCR 286, a delegate of the Australian Securities and Investments Commission ("ASIC") was appointed for the purposes of conducting a hearing into the share trading activities of a company, Thompson Brindal Ltd ("TBL") and determining whether to make a banning order in respect of the appellants under s 830 of the Corporations Law. The appellants' solicitors sought access to all documents and materials in the custody or possession of ASIC which were or might be relevant to the matters before the delegate in connection with the hearing into the proposed banning order, and also to any documents relating to ASIC's investigations into TBL. These requests were denied. The delegate informed the appellants that ASIC had disclosed all relevant material. Kenny J (with whom O'Loughlin and Mansfield JJ agreed) held, at 296 - 297 [42], that the principal requirement of procedural fairness was to bring to the appellants' attention the critical issues on which the decision whether to make a banning order was likely to depend. Her Honour said:

"Such critical issues include the matters adverse to the interests of [the appellants] which [the delegate] is considering taking into account in making his decision on the basis that those matters appear to be based on relevant and credible information which is significant to the ultimate decision to be made. The purpose of the requirement is to afford a person in the position of the appellants an adequate opportunity to respond ..."

Her Honour said, at 297 [44], that the delegate was obliged to provide to the appellants all information adverse to the appellants' interests upon which the delegate proposed to rely which was relevant, credible and significant. Procedural fairness did not, however, require that the appellants have access to all material bearing on the subject-matter of the hearing before the delegate which was in the possession of ASIC.

67 In Re Minister for Mines; Ex parte Roberts (1997) 18 WAR 408, the salient facts were these. The applicant applied for forfeiture of two mining leases pursuant to s 98(1) of the Mining Act on the ground that the holders of the leases had failed to comply with annual expenditure requirements. The applicant's applications were heard by a Mining Warden who made a recommendation to the Minister that the leases be forfeited. Upon the making of such a recommendation, s 99 of the Mining Act conferred on the Minister a discretion to declare the leases forfeited. After the Warden made his recommendation, the holders of the leases made further written submissions to the Minister in an attempt to persuade him not to forfeit. Also, the Director, Geological Survey, from within the Minister's department, submitted to the Minister information which suggested that it may not have been economically viable for the holders to have mined the land in question during the relevant period. The applicant was not informed, before the Minister made his decision on forfeiture, of the existence or content of the further written submissions from the holders, or of the information from or opinions expressed by the Director, Geological Survey. The Minister decided not to forfeit the leases. If forfeiture had been ordered, the applicant would have had, by virtue of s 100(2) of the Mining Act, for a period of 14 days after the date of publication of the notice of forfeiture, a right in priority to any other person to mark out or apply for, or both, a mining tenement upon the whole or any part of the land the subject of the forfeited leases. The Full Court of the Supreme Court of Western Australia made absolute, orders nisi for writs of certiorari and mandamus. Steytler J, as his Honour then was (with whom Malcolm CJ and Kennedy J agreed), said, at 418:

" ... once the Minister elected to receive submissions from the tenement holders he was obliged, as a matter of procedural fairness, to afford to the applicant the opportunity to answer those submissions; cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 46, 60. Moreover, it seems to me that the Minister should not have, in effect, obtained further evidence from the Director, Geological Survey, without affording to the applicant the opportunity to answer, or at least comment on, that evidence. Were the position otherwise, the whole procedure of a full adversary [sic] hearing before the Warden pursuant to the lodging of the plaints by the applicant could effectively be set at nought. It is no doubt for that very reason that the legislature has seen fit to give to the Minister the power to require the Warden to take further evidence or even to re-hear the application when appropriate.

That is not to say, of course, that the Minister can never have the benefit of submissions which were not before the Warden, or take into account evidence which was not placed before the Warden, without sending the matter back to the Warden. However, where those new submissions, or that new evidence, might lead to or materially influence the exercise by the Minister of a discretion adverse to one of the interested parties (as seems to me plainly to have been the situation in this case, in which the Minister was persuaded not to adopt the Warden's recommendation) then he must, at least, give to the affected person the opportunity to be heard in respect of those submissions or that evidence."

Also see Re Plutonic Operations Ltd; Ex parte Roberts [1999] WASCA 133 at [19]; Nova Resources NL v French (1995) 12 WAR 50 at 58; Peko-Wallsend Ltd at 46, 60; R v Murphy; Ex parte Clift [1980] Qd R 1 at 9.

68 In Re Calder SM; Ex parte Gardner [1999] WASCA 28; (1999) 20 WAR 525, WMC Resources Ltd made application, under s 102 of the Mining Act, for exemption from certain expenditure conditions in connection with three mining leases. Mr Gardner objected to exemption being granted. In proceedings before a Mining Warden, Mr Gardner sought an order that WMC Resources Ltd give discovery. The Warden refused to order discovery. Mr Gardner applied for a writ of certiorari against the Warden. Ipp J, with whom Pidgeon J agreed, held, at 535 [35], that the rules of procedural fairness did not require that discovery be made. His Honour said:

"It is not procedurally unfair for the applicant to proceed with its objection in the absence of discovery. In my view, it would be unfair to allow an objector in the position of Mr Gardner to be able to obtain from its competitor for mining rights highly confidential information merely by the expedient of objecting to an application for exemption."

69 Recently, in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 80 ALJR 228, the High Court considered whether the appellant, who had applied for a protection visa under the Migration Act 1958 (Cth), had been denied procedural fairness by the Refugee Review Tribunal. The appellant's application had been refused by a delegate of the respondent, and the appellant subsequently sought review of that decision by the Tribunal. During the course of the review, the Tribunal received a letter which included information adverse to the appellant's claim for a protection visa. The author of the letter requested the Tribunal not to disclose the information. The Tribunal did not disclose either the existence or the content of the allegations to the appellant, and affirmed the decision under review. In its reasons for decision, the Tribunal stated that it placed no weight on the allegations in question, and that those allegations did not form part of the reasons for refusing the appellant a protection visa. The High Court held, relevantly, that procedural fairness required the Tribunal to inform the appellant of the existence of the letter and the substance of the allegations.

70 In VEAL, Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ noted, at 232 [14], that it was not useful to begin the inquiry about procedural fairness by examining what the Tribunal said in its reasons. Rather:

" ... as procedural fairness is directed to the obligation to give the appellant a fair hearing, it is necessary to begin by looking at what procedural fairness required the Tribunal to do in the course of conducting its review."

71 The joint judgment in VEAL then referred, at 232 [15], to the well-known statement of Brennan J, in Kioa at 628 - 629, as to the appropriate procedure when an administrative decision-maker has information available that is adverse to the interests of a person who will be affected by the decision. Brennan J enunciated, at 629, two propositions. First, "in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made". Secondly, "[i]nformation of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information". In VEAL, the joint judgment considered, at 232 - 233 [16] - [17], the meaning to be ascribed to the passage "adverse information that is credible, relevant and significant to the decision to be made" in Brennan J's judgment. Their Honours said, relevantly:

" ... what Brennan J said about 'information that is credible, relevant and significant' takes its meaning from the point his Honour had made [at 628] only a few sentences earlier: that '[a]dministrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made'. Moreover, what is meant by 'credible, relevant and significant' must be understood having regard also to the emphasis that his Honour had given earlier in his reasons [at 622] to the fundamental point that principles of natural justice, or procedural fairness, 'are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise'. Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the processes by which a decision will be reached.

It follows that what is 'credible, relevant and significant' information must be determined by a decision-maker before the final decision is reached. That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. And that is why Brennan J prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant and significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision-maker as not credible, not relevant, or of little or no significance to the decision to be made. 'Credible, relevant and significant' must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is 'credible, relevant and significant' are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached."

The joint judgment concluded, at 233 [18], that it did not follow from the Tribunal's statement, in its reasons, that it gave no weight in reaching its decision to the letter or its contents, that there was no obligation to reveal the information to the appellant and give him an opportunity to respond to it before the Tribunal concluded its review. Further, the Tribunal's obligation to accord procedural fairness to the appellant was not discharged in consequence of the Tribunal deciding that it could decide the application for review on other bases.

72 Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ then turned their attention, at 233 [19], to whether the letter had or might have had some subconscious effect upon the Tribunal. Their Honours approved the observation of Allsop J in NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40; (2002) 115 FCR 561 at 583 [84] that "the necessity to disclose [adverse information] in order to accord procedural fairness is not based on answering a causal question as to whether the material did in fact play a part in influencing the decision". Asking whether, despite what was said in its reasons, the Tribunal may have been subconsciously affected by the information in the letter, distracted attention from the relevant inquiry. Their Honours noted:

"The relevant inquiry is: what procedures should have been followed? The relevant inquiry is neither what decision should the decision-maker have made, nor what reasons did the decision-maker give for the conclusion reached."

The joint judgment held, at 234 - 235 [27], that the Tribunal should have informed the appellant of the substance of the adverse allegations in the letter. Although the Tribunal had sought to act fairly, the procedure it adopted was unfair.

Whether the proposed amendment to par 13 of the notice of originating motion should be allowed: the merits of the application

73 I will consider, first, the merits of the application to amend in relation to par 21 of the First Rio Submission.

74 The first respondent submitted that the proposed amendment to par 13(b) proceeded on the basis that the documents and information in question were not before or otherwise considered by the first respondent. It was contended that, accordingly, "[t]here [was] no room for the concern that the [first respondent's] decision may have been influenced or affected by [such] information or documents". The first respondent submitted that the authorities relied upon by the applicant, in particular Ex parte Roberts, Re Plutonic Operations, NIB Health Funds and Applicant VEAL of 2002, were therefore of no assistance. Also, it was submitted that Re Calder SM and McLachlan were against the applicant. According to the first respondent, the proposed amendment to par 13(b) was unarguable, and in consequence leave to amend should be refused.

75 The second respondents' submissions were similar to those of the first respondent. It was contended that the underlying reason for the requirement that a person be given the opportunity to deal with adverse information in the possession of the decision-maker is that information of that kind may create prejudice, including prejudice at a subconscious level. According to the second respondents, if, as a matter of fact, information is not before or considered by the decision-maker, then there can be no risk of conscious or subconscious prejudice. The second respondents also submitted that, in any event:

(a) Paragraph 21 of the First Rio Submission was "clear and intelligible".

(b) Paragraph 21 did not refer to "any royalty issues".

(c) The applicant did not require any further information or particulars. It was able to, and did, address the issues raised in pars 20 - 23 of the First Rio Submission.

(d) The "Statement of Principles" issues were confidential and "commercially sensitive". Any required disclosure would be limited to stating the substance of the Statement of Principles, to the extent relevant to the point being advanced by the second respondents. The First Rio Submission disclosed the Statement of Principles to the necessary extent.

76 In my opinion, it is reasonably arguable that the matters referred to in par 21 of the First Rio Submission, in particular, the Statement of Principles, the proposed incorporation of the Shovelanna resource in the Rhodes Ridge State Agreement, and the ongoing discussions between the State and Rio Tinto Limited, were credible, relevant and significant to the decision to be made by the first respondent, in that:

(a) the State's iron ore policy (in particular, the view that long-term and secure tenure is essential for the development of iron ore resources in order to encourage the necessary investment in infrastructure) was relevant to the decision to be made;

(b) the use of State agreements for the development of iron ore resources is an aspect of the State's iron ore policy;

(c) the Department's report on the State's iron ore policy was addressed to Mr Neil Roberts, and Mr Roberts was consulted by the first respondent before making the decision;

(d) at all material times Rio Tinto Limited has managed RRJV;

(e) the Rhodes Ridge iron ore resource is situated about 77 kilometres from the Shovelanna resource, and Rio Tinto Limited proposes to develop the Shovelanna resource, in part, by extending the existing railway facility from Rhodes Ridge to Shovelanna;

(f) a copy of the letter dated 13 November 1979 from the then Premier in relation to amending the Rhodes Ridge State Agreement, so that it applies to the Shovelanna resource, was annexed to the Department's submission to the first respondent;

(g) the ongoing negotiations between the State and Rio Tinto Limited involved or included negotiations in relation to:

(i) a proposal that the Rhodes Ridge State Agreement be amended, so that it applies to the Shovelanna resource; and

(ii) a proposal that the royalty rates payable under State agreements involving Rio Tinto Limited be varied;

(h) the applicant requested Rio Tinto Limited to delete from the submissions made on behalf of the second respondents to the first respondent any reference to the matters referred to in par 21 of the First Rio Submission, but Rio Tinto Limited refused on the ground that the material was relevant to the first respondent's decision; and

(i) the subject matter of the Statement of Principles (in particular, the variation of the royalty rates) was likely to have been of some significance to the State.

In the circumstances, the matters referred to in par 21 were arguably favourable to the interests of RRJV and, therefore, adverse to those of the applicant.

77 If the matters referred to in par 21 of the First Rio Submission were credible, relevant and significant, it is reasonably arguable that, in circumstances where:

(a) the State and Rio Tinto Limited had a detailed knowledge of those matters, but the applicant did not; and

(b) Rio Tinto Limited insisted that those matters were relevant to the first respondent's decision,

the first respondent was obliged to ensure that the applicant was provided with sufficient information about them to enable it properly to make submissions as to their relevance and significance to the decision in question.

78 If the matters referred to in par 21 of the First Rio Submission were credible, relevant and significant, and if the first respondent was obliged to ensure that the applicant had sufficient information about them to enable it properly to make submissions as to their relevance and significance to the decision in question, it is reasonably arguable that:

(i) insufficient information was provided to the applicant about those matters; and

(ii) there is a real possibility that those matters might have affected the first respondent's decision.

79 I am of the opinion that the proposed amendment to par 13(b) (which relates to par 21 of the First Rio Submission) is reasonably arguable, notwithstanding that the Honourable Mr Bowler was not, at any material time, the Minister with responsibility for the Rhodes Ridge State Agreement or any other iron ore State agreements, and notwithstanding that, on the basis of Mr Stevens' affidavit sworn 19 September 2006, the documents which were before or otherwise considered by him did not include any documents of the kind referred to in the proposed amendment to par 13(b). The first respondent said, when he published his decision, that he had carefully considered the submissions and counter-submissions of each of the parties. It follows that, in making his decision, the first respondent carefully considered the matters referred to in par 21 of the First Rio Submission. It is reasonably arguable that the first respondent's knowledge of those matters was not limited to the statements made in par 21. As I have mentioned:

(a) at all material times after 3 February 2006, the Honourable Mr Bowler was the Minister responsible for the administration of the Mining Act;

(b) although Mr Bowler was not, at any material time, the Minister with responsibility for the Rhodes Ridge State Agreement (or any other iron ore State agreements), at all material times the Department assisted Mr Bowler and the Honourable Mr Carpenter (who, in his capacity as Minister for State Development, had responsibility for the Rhodes Ridge State Agreement and the other iron ore State agreements); and

(c) there appears to be at least the potential for some overlap, in relation to some of the matters referred to in par 21, between issues which are the responsibility of the Minister administering the Mining Act and issues which are the responsibility of the Minister administering the Rhodes Ridge State Agreement and the other iron ore State agreements.

80 It is true that the applicant has been unable to cite any authority which is directly on point. I consider, however, that it has a reasonably arguable case based on the general statements of principle to be found in the authorities I have reviewed. McLachlan and Re Calder SM are distinguishable. In McLachlan, the appellants had sought access to all material bearing on the subject matter of the hearing before the delegate which was in the possession of ASIC, and not merely to information adverse to their interests upon which the delegate proposed to rely and which was relevant, credible and significant. In Re Calder SM, the applicant (Mr Gardner) had sought general discovery from WMC Resources Ltd in connection with its application for exemption from the applicable expenditure conditions. I am satisfied that the applicant's case, based on the proposed amendment to par 13(b), is not so clearly untenable that it cannot succeed. I would therefore allow that proposed amendment.

81 I turn now to consider the merits of the application to amend in relation to the meeting on or between about 6 and 8 September 2005 between the Honourable Mr Carpenter and Mr Clifford.

82 The applicant submitted that the matters discussed at the meeting were credible, relevant and significant to the first respondent's decision. The applicant also submitted that there was "a significant likelihood" that the first respondent acquired "some knowledge" of the matters discussed at that meeting, in that:

(a) on 3 February 2006 the first respondent became the Minister Assisting the Minister for State Development;

(b) on 3 February 2006 the first respondent replaced the Honourable Mr Carpenter as the Minister administering the Mining Act;

(c) the first respondent replaced Mr Carpenter as the Minister responsible for making the decision in relation to the termination of E46/678 during the course of the decision-making process; and

(d) it is "likely" that Mr Neil Roberts was aware of the matters discussed at the meeting because he was an adviser to Mr Carpenter, and there is evidence that the first respondent consulted Mr Roberts before making the decision in question.

" ... there is an arguable case that the [matters discussed at the meeting] [were] information before [the first respondent] - actually or constructively - when he made his decision ... and, further, that he failed to provide the applicant with an opportunity to be heard in relation to [the matters discussed at the meeting] ..."

"An important aspect of the principles of procedural fairness is that the decision-making process is not merely fair but that it is seen to be fair. In circumstances where there has been a deliberate ex parte communication it is arguable that there should be full disclosure of that communication so that the decision-making process is not tainted. ..."

83 The first respondent contended that it was not open, in the circumstances, to infer that the first respondent acquired knowledge of the matters discussed at the meeting. In particular, it was said:

(a) First, the first respondent was not the Minister Assisting the Minister for State Development before 3 February 2006. The office of Minister for Resources and Assisting the Minister for State Development was only created when the Minister was appointed on 3 February 2006. Before that time, the first respondent was Minister for Local Government and Regional Development, Sport and Recreation, Land Information, Goldfields - Esperance and Great Southern.

(b) Secondly, the assertion that the fact of appointment as Minister carried with it knowledge of all conversations which the former Minister had, was without merit.

84 The second respondents supported the first respondent's submissions on this issue. Senior counsel contended, on their behalf, that:

(a) no reasonable inference could be drawn from the evidence that any "adverse information" was conveyed by Mr Clifford to the Honourable Mr Carpenter at the meeting; and

(b) no reasonable inference could be drawn from the evidence that the content of any of the discussions between Mr Clifford and Mr Carpenter was conveyed, directly or indirectly, to the first respondent.

85 There is no evidence before me that there was any conversation between Mr Clifford and the Honourable Mr Carpenter, in relation to the possible termination of the application for E46/678, beyond the brief exchange mentioned by Mr Carpenter during the radio interview. The transcript of the interview records, relevantly, that:

(a) the meeting between Mr Carpenter and Mr Clifford was arranged before they became aware of RRJV's loss of E46/209 and the application by the applicant for E46/678;

(b) Mr Clifford informed Mr Carpenter of the events relating to the loss of E46/209 and the application for E46/678, and that there would be a dispute in relation to those events; and

(c) Mr Carpenter informed Mr Clifford that he was obliged, as the responsible Minister, to act properly and fairly, and he would do so.

There is no evidence that any further or other matters were discussed at the meeting in relation to the loss of E46/209, the application for E46/678 or the request "foreshadowed" by Hamersley Resources Ltd in its letter dated 2 September 2005 that Mr Carpenter exercise his discretion to refuse the applicant's application under s 111A(1)(c)(ii) of the Mining Act. There is no evidence that Mr Carpenter's account of his conversation with Mr Clifford, or the circumstances in which it occurred, is incomplete or inaccurate.

86 In my opinion, it is not reasonably arguable that any matters were discussed between the Honourable Mr Carpenter and Mr Clifford at the meeting which were credible, relevant or significant to the first respondent's decision. Further, it is not reasonably arguable that a hypothetical fair-minded person who is properly informed as to:

(a) the statutory context and decision-making structure in relation to s 111A(1) of the Mining Act;

(b) the matters to be decided in relation to whether the applicant's application for E46/678 should be terminated pursuant to s 111A(1)(c)(ii); and

(c) the objective facts, disclosed in the evidence before me, concerning the meeting,

might reasonably apprehend, by reason of those matters, that Mr Carpenter, or his successor as the Minister responsible for the administration of the Mining Act, might not bring an independent and impartial mind to the making of the decision in question. On the evidence before me, there was nothing in the conversation between Mr Clifford and Mr Carpenter which should have been communicated to the applicant to enable it to make a correction or contradiction or to make submissions. Also, on the evidence, there was nothing in that conversation which gave rise to a reasonable apprehension of bias.

87 It is unnecessary, in the circumstances, to determine whether there is a reasonable argument for the proposition that the substance of the exchange between the Honourable Mr Carpenter and Mr Clifford at the meeting was "actually or constructively" before the first respondent when he made his decision.

88 In my opinion, the proposed amendment to par 13 involving the addition of par 13(c) should not be allowed.

Whether documents relating to the "Statement of Principles" referred to in par 21 of the First Rio Submission should be discovered, even if not before the first respondent or otherwise considered when he made the decision

"Any party may give notice in writing to any other party in a cause or matter requiring him to give discovery of all documents which are or have been in his possession, custody or power relating to any matter in question therein."

By O 26 r 7(3), relevantly, on an application, or at any time of its own motion in any proceedings, the Court, having regard to O 1 r 4B, may:

"(a) order any or all of the parties to give discovery at that stage or at some specified future stage of the action;

(b) as to the documents to be discovered by any party -

(i) order that discovery be given of only those specified documents or specified classes of documents;

(ii) order that discovery be given of only those documents that are directly relevant to any specified matter in question or to all matters in question;

(iii) order that discovery be given of all documents relating to any specified matter in question or to all matters in question;

(c) ... ;

(d) order that any or all of the parties not give discovery at that stage of the action, or at all;

(e) order any or all parties to make, file and serve an affidavit verifying the party's list of documents discovered."

Order 26 r 7(1) provides that an application for an order under r 7 may be made at any time by:

(a) a party whose request under r 1 for discovery has not been satisfied; or

(b) a party who has been requested under r 1 to give discovery, whether or not the party has complied with the request.

This Court has power to make orders in relation to discovery. See O 26 read with r 5 of the Supreme Court (Court of Appeal) Rules.

90 In CanWest Global Communications Corporation v Australian Broadcasting Authority (1997) 24 ACSR 405, applications were made to the Federal Court seeking review of decisions made by the Australian Broadcasting Authority and the Treasurer of the Commonwealth of Australia relating to the control and ownership of shares in the parent company of the owner of a broadcasting licence. The proceedings against the Australian Broadcasting Authority relied upon the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). The provisions of the ADJR Act did not, however, apply to the proceedings against the Treasurer. Interlocutory applications were brought for discovery of all documents before the relevant decision-maker at the time the decisions were made. Hill J reviewed the authorities dealing with the entitlement of an applicant for judicial review to general discovery of documents relevant to the issues raised by the application. His Honour noted, at 410, that it appears early to have been the view that discovery could not be ordered in support of prerogative writs, and then said:

"However, it is now quite clear that discovery may be given in proceedings for administrative review: Nestle Australia Ltd v FCT (1986) 10 FCR 78; TNT Australia Pty Ltd v Fels (1992) ATPR 41-190 per Gummow J and Australian Securities Commission v Somerville (1994) 51 FCR 38; 128 ALR 132. It might be noted that, while most of the Australian cases have considered the availability of discovery in the context of applications made under the ADJR Act, the Court of Appeal in the United Kingdom had no difficulty in R v Secretary of State for the Home Department; Ex parte Herbage (No 2) [1987] QB 1077 in determining that in an appropriate case discovery could be granted in administrative review proceedings at common law."

After referring to and discussing the decision of a Full Court of the Federal Court in WA Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 41 FLR 175, his Honour said, at 412:

"The power of the court to order discovery in judicial review cases, particularly those brought under the ADJR Act, was considered by a Full Court of this court, differently constituted, in ASC v Somerville, supra. In that case the court (comprising Black CJ, Ryan and Olney JJ) referred to WA Pines and, inter alia, the judgment of Beaumont J in Re FCT; Ex parte Swiss Aluminium Australia Ltd (1987) 72 ALR 247 and concluded that there was no justification for the view that discovery in judicial review proceedings should be treated otherwise than according to the ordinary principles applicable in civil proceedings. Their Honours recognised that, having regard to s 13 of the ADJR Act, the occasion for making an order for discovery will not necessarily arise where the court has all the material necessary to exercise its jurisdiction.

One of the arguments put to the court in Somerville was that it was incumbent upon an applicant for discovery to establish, usually by way of evidence, a basis upon which the court should conclude that there was an issue to be tried, proof of which would be aided by discovery. This argument was rejected. Certainly there is no such requirement in the general law where discovery is sought in ordinary civil cases."

By O 15 r 15 of the Federal Court rules, discovery "shall not" be ordered unless the Court is satisfied that the order is "necessary" at the time when the order is made. His Honour considered, at 413, whether discovery was necessary in the context of the grounds of review in the case before him:

"The application for review covers many grounds. It is unnecessary to detail all of them. In respect of most of the grounds no question of discovery could possibly arise. For example, it is said that the notices given were not authorised by the Act or, if they were, that the Authority had misapplied various sections of the Act or made other errors which were errors of law.

However, one of the grounds of review (once amendment to the grounds is made as has been requested and which amendment I would allow) is that the Authority's decision was unreasonable and incapable of being supported by any material which was before the Authority. The ground as formulated is in essence a ground of Wednesbury unreasonableness: cf Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223. ...

Where the issue is whether a decision reached by an administrative decision-maker is so unreasonable or irrational that no reasonable (or rational) decision-maker could possibly arrive at it, regard must be had to the material which was actually before the decision-maker. I use the word 'actually' without intending to exclude from consideration material which was constructively before the decision-maker in that it was held by the decision-maker or the government department, although not in fact taken into account: cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 45; [1986] HCA 40; 66 ALR 299 and Lego Australia Pty Ltd v Paraggio [1994] FCA 1286; (1994) 52 FCR 542 at 567; [1994] FCA 1286; 124 ALR 225.

Since the ground can only be made out by having regard to the totality of the evidence before the decision-maker in the sense which I have used that expression, it must follow axiomatically that the material before the decision-maker must be available to the court. ..."

His Honour then examined, at 414 - 415, the so-called exception encompassed by the words "fishing expedition":

"For my part I think it is unfortunate that over the years the colourful words 'fishing expedition' have been used in the present context. In one sense, every application for discovery will involve some element of 'fishing'. A party seeking discovery will often, perhaps usually, not know what material is in the possession or power of the other party which may advance or tend to advance the case of the person seeking discovery or denigrate from the case of his or her opponent. ...

...

... The present is not a case of mere assertion despite a submission to the contrary on the part of the respondents. It is a case where the court is being asked to exercise its supervisory jurisdiction of administrative decision-making by reference to the material which was before the decision-maker and in circumstances where the allegation is made that the totality of this material (in the possession of only one party) supports the view of unreasonableness or irrationality. It seems to me that that is a quite different case from that involved in WA Pines. To the extent that it is necessary that something more than an allegation be required even where Wednesbury unreasonableness is alleged, I think that the present case rests in more than assertion. The considerable material filed, which includes the Authority's report, leaves room for an unreasonableness argument. Be that as it may, where the manner in which the decision-maker has acted is at issue and the issue is required to be determined by reference to materials before the decision-maker, supervisory review can not be exercised without regard to the relevant material. It may support the applicant. It may support the respondent. But on the face of the pleadings and the report of the Authority, I think that there is sufficient material before me to show that what is involved is not as it were an attempt to determine whether there is a case to be made out under some head of judicial review, but rather there is the need here to have evidence to show whether the case that has been sought to be made out in fact is made out.

Accordingly, I am of the view that in the relevant sense discovery is necessary and that the case is not one falling within the exception of 'fishing'. ..."

His Honour emphasised, at 415, that there is no distinction to be drawn, in relation to whether discovery should be ordered, between cases falling under the ADJR Act on the one hand, where reasons may be obtained under s 13 of that Act, and cases brought at common law on the other. In particular:

"Each case will depend upon a determination of the question whether discovery is necessary. Although depending upon the ground of review, s 13 of the ADJR Act may render the occasions where discovery will be necessary less numerous than otherwise would be the case, if anything the presence of the remedy in s 13 reinforces the necessity of discovery in cases to which s 13 has no application."

His Honour held, at 415, in relation to the proceedings against the Treasurer (which, as I have mentioned, were not within the ADJR Act), that the issue was whether the case was an appropriate one for discovery. Where discovery is sought in proceedings for judicial review at common law, the issue is solely whether discovery is necessary, subject to the exclusion of those cases where the applicant for discovery seeks to find, rather than to support, a case.

91 In Caltex Refining Co Pty Ltd v Amalgamated Metal Workers Union (1990) 51 IR 113, Burchett J (with whom Lockhart and Gummow JJ agreed) said, at 116, in relation to the objection called "fishing":

"This objection to applications for discovery of documents does not now have the weight it was once thought to have. Perhaps it should be seen as a metaphor with more colour than substance. Modern procedures actually provide as something desirable for what might once have been criticised as fishing - see O 15A of the Rules of this Court, particularly r 6. It would be ironic if the Court refused an applicant, on this basis, discovery after action, when discovery could have been obtained (at the expense of incurring extra costs) by an application before action.

Discovery should be controlled, and may be limited to documents relevant to particular issues, but it is a valuable weapon in the armoury of justice. The real objection which, in some cases, justifies discovery being limited to particular issues is the objection of oppression."

Also see O 26A of the Western Australian Rules in relation to pre-action discovery from non-parties and potential parties.

92 In Western Australia, O 26 does not limit the nature of civil proceedings in respect of which discovery may be ordered. Although, in principle, discovery is available where prerogative relief is claimed, discovery in proceedings of that kind is unusual. But if discovery is necessary for the proper administration of justice, and for disposing fairly of a ground of judicial review, an order for discovery may well be made. See and compare R v Corporation of the City of Tea Tree Gully; Ex parte Concrete Systems Pty Ltd (1986) 43 SASR 241 at 243, 248, 251; CanWest at 410 - 412; Perpetual Trustees Pty Ltd v City of Joondalup [1999] WASCA 108 at [3]; Re Real Estate and Business Agents Supervisory Board; Ex parte Cohen, unreported; SCt of WA (Scott J); Library No 980668; 17 November 1998 at 24 - 25; "B" v The State of Western Australia [2002] WASC 298 at [24] - [35].

93 I am satisfied that the first respondent should give discovery of documents relevant to the matters referred to in par 21 of the First Rio Submission. In particular, there should be discovery by the first respondent of the categories of documents enumerated in sub-pars (a) - (e) of [11] above. Discovery of those documents is necessary to enable this Court to adjudicate upon the ground in par 13(b) of the notice of originating motion, as amended pursuant to the leave which I propose to grant. The documents in question are relevant, at least, in determining whether (if the matters referred to in par 21 of the First Rio Submission were credible, relevant and significant, and if the first respondent was obliged to ensure that the applicant had sufficient information about them to enable it properly to make submissions as to their relevance and significance to the decision) insufficient information was provided to the applicant. It is unnecessary, at this stage, to define exhaustively the issues in the proceedings to which the documents in question are relevant.

94 A list of the documents to be discovered should be prepared, and an affidavit sworn verifying the list. I consider that Mr Stevens should be specified as the person who is to comply with the discovery order on behalf of the first respondent. The affidavits which Mr Stevens has already sworn in these proceedings indicate that he is the most appropriate person to swear the affidavit verifying the list. By reason of his involvement in the decision-making process and his seniority within the Department, Mr Stevens is in, or able to be placed in, a position to ensure that the first respondent's obligation is properly discharged. I do not consider that the first respondent personally is in, or able to be placed in, a better position than Mr Stevens. Compare Minson v Federal Commissioner of Taxation [2001] FCA 1570; (2001) 48 ATR 342 at 346 - 347 [16] - [17]; Magenta Nominees Pty Ltd v Bonini [1999] WASC 88 at [17].

95 Although I am satisfied that the first respondent should give discovery of the categories of documents enumerated in sub-pars (a) - (e) of [11] above, it is unnecessary, in my opinion, also to order the second respondents to give discovery of those documents. It is the first respondent's decision which is the subject of judicial review. The amended ground in par 13(b) raises, as an issue, whether the first respondent was obliged, and failed, to ensure that the applicant was provided with sufficient information about the matters referred to in par 21 of the First Rio Submission. In the circumstances, the order for discovery should be confined to the first respondent.

Whether documents relating to the meeting between the Honourable Mr Carpenter and Mr Clifford, to the extent they relate to the subject matter of the first respondent's decision, should be discovered, even if they were not before the first respondent or otherwise considered when he made the decision

96 I have refused to grant leave to amend par 13 of the notice of originating motion by the addition of par 13(c). It follows that the application for discovery in relation to the documents enumerated in sub-par (f) of [11] above should be dismissed.

The adequacy of the affidavit of discovery sworn on 19 September 2006

97 Order 26 r 4(1) provides that the list of documents made in compliance with O 26 r 1, or with an order under O 26 r 7, must be in Form No 17. Form No 17 provides, relevantly:

"LIST OF DOCUMENTS

(Heading as in cause or matter)

List of Documents.

The following is a list of the documents relating to the matters in question in this action which are or have been in the possession, custody or power of the abovenamed plaintiff (or defendant) A.B. and which is served in compliance with Order 26 Rule 1(3) [or, the order herein dated the day of

20 .]: -

1. The plaintiff (or defendant) has in his possession, custody or power the documents relating to the matters in question in this action enumerated in Part 1 of the First Schedule hereto.
2. The plaintiff (or defendant) objects to produce the documents enumerated in Part 2 of the said First Schedule on the ground that [stating the ground of objection].
3. The plaintiff (or defendant) has had, but has not now, in his possession, custody or power the documents relating to the matters in question in the action enumerated in the Second Schedule hereto.
4. Of the documents in the said Second Schedule, those numbered in that Schedule were last in the plaintiff's (or defendant's) possession, custody or power on (stating when) and the remainder on (stating when).
5. That [here state what has become of the last mentioned documents, and in whose possession they are now].
6. Neither the plaintiff (or defendant), nor his solicitor nor any other person on his behalf, has now, or ever had, in his possession, custody or power any document of any description whatever relating to any matter in question in this action, other than the documents enumerated in the First and Second Schedules hereto.

98 Order 26 r 4(3) provides that an affidavit verifying a list of documents "must be in Form No 18". Form No 18 provides:

"AFFIDAVIT VERIFYING A LIST OF DOCUMENTS

(Heading as in cause or matter)

I the abovenamed plaintiff (or defendant) A.B; make oath and say as follows:-

1. The statements made by me in paragraphs 1, 3, 4 and 5 of the list of documents now produced and shown to me marked are true.
2. The statements of fact made by me in paragraph 2 of the said list are true.
3. The statements made by me in paragraph 6 of the said list are true to the best of my knowledge, information and belief.

Sworn, etc.

Filed on behalf of the (plaintiff) (or defendant)."

"Any list of documents or affidavit verifying such list may be made -

(a) ... ;

(b) where the party is the State or an officer of the State sued or suing in his official capacity - by an officer of the State;

(c) ... ,

and in the case of an order against any party to which par (b) ... applies the order must specify the person who is to comply with the order on behalf of the party."

100 The applicant's complaints and submissions are, relevantly, these:

(a) Paragraph 4 of Mr Stevens' affidavit sworn 19 September 2006 states that he has caused "substantial and detailed inquiries" to be made, but that is not identical to the deponent's obligation, namely, to make, or cause to be made, all due and proper inquiries.

(b) The reference in par 5 of Mr Stevens' affidavit to "my knowledge of some of the documents and the inquiries which I have caused to be made" is an unwarranted and inappropriate qualification of his averment that the statements in pars 1 - 4 of the list of documents are true to the best of his "knowledge, information and belief".

(c) The first respondent personally is in the best position to swear an affidavit verifying discovery of the documents in question, and this Court should order him personally to swear an affidavit in Form No 18.

101 Originally, discovery and production of documents was obtained in Chancery by means of interrogatories. According to Bray, The Principles and Practice of Discovery, 1885, at pages 155 - 156:

"They were either so framed as to compel the party to set forth the short contents of the documents in his answer (and if necessary the Court would also order their production), or by means of a general charge of possession of documents from which the truth of the allegations in the bill would appear or relating to the matters contained in the bill, or by a special charge of possession of particular documents, such an admission was obtained as that an order for production could be founded thereon: ..."

By sections 18 and 20 of the Chancery Procedure Act 1852 (UK), and orders made under those sections, the affidavit of documents was introduced. At common law, the affidavit was introduced by s 50 of the Common Law Procedure Act 1854 (UK), the power of ordering inspection of particular documents having previously been conferred upon the common law courts by s 6 of 14 & 15 Vict. c. 99. See Bray at page 156.

102 The requirement in par 3 of Form No 18 that the statements made in par 6 of the list of documents are "true to the best of [the] knowledge, information and belief" of the deponent reflects the following observations in Bray at page 220:

"The affidavit of documents being in reality an answer to an imaginary interrogatory (see Rochdale Canal Co. v. King, 15 Beav.11, and ante, p.155), and there being no distinction of principle between the obligation to state facts in it and in an answer to interrogatories (see ante, p.140), must be made in the same manner and under the same conditions as interrogatories must be answered, that is to say, according to the best of the party's knowledge information (remembrance) and belief: ..."

103 The obligation of a person who is swearing an affidavit of discovery, in relation to identifying and disclosing all relevant documents, was summarised by von Doussa J in Re McGorm; Ex parte The Co-operative Building Society of South Australia (1989) 20 FCR 387 at 389 - 390:

"The obligation resting on a party obliged to give discovery requires that he make proper inquiries and efforts to identify and disclose all relevant documents that are not in his possession. The obligation extends to making inquiries from the person in whose possession the documents now are: see Mertens v Haigh [1863] EngR 633; (1863) 3 De GJ & S 528 at 531; [1863] EngR 633; 46 ER 741 at 742. It was said in the nineteenth century case of Taylor v Rundell [1841] EngR 256; (1841) Cr & Ph 104 at 113; [1841] EngR 256; 41 ER 429 at 433 by Lyndhurst LC: 'If it is in your power to give the discovery, you must give it; if not, you must show that you have done your best to procure the means of giving it'; see also Palmdale Insurance Ltd (in liq) v L Grollo and Co Pty Ltd [1987] VicRp 8; [1987] VR 113.

The scope of the inquiries which should be made will depend on the circumstances of the case having regard to the need for discovery in order to dispose fairly of the matters in question, or to save costs in the proceedings. The inquiries must be reasonable, but do not demand of the party giving discovery that he goes to lengths which are oppressive. Guidance is available from cases on the allied procedure for interrogatories. In Sroka v Gorbal (1980) 25 SASR 356 the Full Court of South Australia held that it was reasonable to require a party interrogated about the circumstances of a car accident to revisit the scene for the purpose of answering provided that to do so would not impose undue hardship."

104 Where a party is the State, the officer who has the obligation of identifying the documents which must be discovered should satisfy himself or herself that all reasonable inquiries have been made within the applicable department or departments of government to satisfy the State's obligation to give proper discovery. The affidavit verifying the list of documents is made by such officer of the State as the order specifies. The Court should specify the person who is in, or able to be placed in, the best position to discharge the State's obligation. Compare R v Ronen [2004] NSWCCA 67; (2004) 62 NSWLR 707 at 717 - 718 [36] - [40]; Smith Kline & French Laboratories Ltd v Inter-Continental Pharmaceuticals (Australia) Pty Ltd [1969] HCA 34; (1969) 123 CLR 514 at 520 - 521; Commercial Bank of Australia Ltd v Whinfield [1920] VicLawRp 51; [1920] VLR 225 at 229.

105 Mr Stevens' affidavit sworn 19 September 2006, and the list of documents to which that affidavit relates, are not precisely in the form of Form No 18 and Form No 17 respectively. The discovery which was given, however, was of a particular class of documents, namely, all documents which the first respondent had before him or otherwise considered when he made the decision in question. It was not general discovery with respect to all matters in question in these proceedings. The precise form of Form No 18 and Form No 17 was therefore inappropriate. Compare Weir v Perpetual Trustees of WA Limited, unreported; SCt of WA (Master Seaman QC); Library No 6664; 10 April 1987, at pages 4 - 5.

106 Although Form No 18 and Form No 17 do not contain a statement that a person making an affidavit of discovery on behalf of the State or an officer of the State or a body corporate has made "due and proper inquiries", such a statement should be included in the affidavit or list of documents. See Sharpe v Smail (1975) 49 ALJR 130 at 132; Gilchrist v R Wallace Mitchell Pty Ltd [1972] VicRp 52; [1972] VR 481 at 483; Whinfield at 229.

107 As to the applicant's first complaint, I consider that Mr Stevens' averment that he has caused "substantial and detailed inquiries" to be made, in relation to the documents which the first respondent had before him or otherwise considered, is materially different from an averment that he has made "due and proper inquiries". The making of "due and proper inquiries", in the context of these proceedings, would require Mr Stevens to make inquiry of, at least, the first respondent. Mr Stevens' statement that he has caused "substantial and detailed inquiries" to be made does not necessarily connote that he has made inquiry of the first respondent.

108 As to the applicant's second complaint, par 5 of Mr Stevens' affidavit provides that, on the basis of "[his] knowledge of some of the documents and the inquiries which [he has] caused to be made", the statements made by him in pars 1 - 4 of the list of documents are true, to the best of his knowledge, information and belief. He has deposed that the relevant statements are true to the best of his knowledge, information and belief, and has stated, in addition, the basis for that averment (namely, his personal knowledge of some of the documents, and the inquiries that he has caused to be made). I consider that the averment in par 5 of Mr Stevens' affidavit would have been adequate if the inquiries to which he refers had been "due and proper inquiries" made by him, rather than "substantial and detailed inquiries" he had caused to be made.

109 As to the applicant's third complaint, for the reasons I have mentioned, in the context of deciding that the first respondent should discover the categories of documents enumerated in subpars (a) - (e) of [11] above, I am satisfied that Mr Stevens was an appropriate person to swear the affidavit verifying the list of documents, and that a case has not been made out for requiring the first respondent personally to swear an affidavit verifying discovery.

110 I am therefore of the opinion that Mr Stevens should swear a supplementary or substitute affidavit in which he deposes, relevantly, that he has made "due and proper inquiries" in relation to the documents which the first respondent had before him or otherwise considered when he made the decision in question.

Confidentiality in relation to the documents required to be discovered

111 Each of the first and second respondents submitted that if any of the respondents was ordered to discover further documents then the order should be on terms which protected the confidential and commercially sensitive nature of the documents. I am satisfied that the further documents which I have decided should be discovered are confidential and commercially sensitive, and an order should be made which will protect that status.

(a) the applicant should be granted leave to amend par 13(b) of the notice of originating motion in accordance with the minute which is annexed to the applicant's application for leave to amend dated 23 November 2006;

(b) the applicant should be refused leave to amend by the addition of the proposed new par 13(c);

(c) the first respondent, by Robert James Stevens, should give discovery on oath in relation to the categories of documents enumerated in pars (a) - (e) of [11] above;

(d) the first respondent, by Robert James Stevens, should swear a supplementary or substitute affidavit in which he deposes, relevantly, that he has made "due and proper inquiries" in relation to the documents which the first respondent had before him or otherwise considered when he made the decision in question;

(e) otherwise, the applicant's application for discovery should be dismissed ; and

(f) terms should be imposed in relation to the discovery order to protect the confidential and commercially sensitive nature of the further documents which I have decided should be discovered.

I will hear counsel as to the precise terms of the orders and as to costs.