Procedure - Discovery and interrogatories - Discovery and inspection of documents - Discovery of documents - In what proceedings - Judicial review proceedings.

Australian Securities Commission v Somerville (1994) 51 FCR 38, followed.

Judgment Number: [2009] TASSC 58

ANTHONY JOHN NORWOOD ARCHER v MINISTER FOR PRIMARY INDUSTRIES AND WATER

1 The applicants are seeking orders for discovery in relation to 16 documents or classes of documents. The respondent does not oppose the orders sought in relation to five of those documents or classes of documents (items 1, 2, 3, 6 and 8) but opposes the application in relation to the others. The discovery application has been made in respect of an application under the Judicial Review Act 2000 in respect of a decision by a Minister to adopt two water management plans in purported pursuance of the Water Management Act 1999, s28. The applicants are not entitled to discovery as of right, but there is a discretionary power to order discovery under the Supreme Court Rules 2000, r386.

2 The case law relating to discovery in judicial review proceedings was reviewed by the Full Court of the Federal Court (Black CJ, Ryan and Olney JJ) in Australian Securities Commission v Somerville (1994) 51 FCR 38. At 53, their Honours concluded that no justification could be found "for any proposition to the effect that discovery in judicial review proceedings should be treated otherwise than according to the normal principles applicable in civil proceedings."

3 Discovery may be ordered of any document which may, not must, directly or indirectly enable the party seeking discovery either to advance its own case or to damage the case of its adversary, or which may fairly lead to a train of enquiry which has one of those consequences: Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55 at 63.

4 The management plans in question are the Lakes Sorell and Crescent Water Management Plan and the Clyde River Water Management Plan. Having regard to the applicants' grounds of review, as amended, the position as to their contentions appears to be as follows:

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The applicants contend that the Minister failed to take into account one or more relevant considerations.

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The applicants contend that the Minister's decision to adopt the managements plans was an exercise of power that was so unreasonable that no reasonable person could so exercise that power.

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The applicants contend that the Minister exercised his power in such a way that the result of the exercise of power is uncertain.

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The applicants contend that the Minister failed to address the statutory requirements of the Water Management Act, s15, which, when it applies, requires a water management plan to do the following:

"(a) include an assessment of the capacity of the relevant resource to meet the likely demands for water by existing and future users; and

(b) take into account the needs of existing and future users and state the likely effect of the plan on those users, including any effect on businesses carried on by those users."

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The applicants contend that at least one of the management plans did not comply with s15.

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The applicants contend that the Minister's decision was contrary to the Lakes Sorell and Crescent Conservation Act 1901. That Act makes provision for limited quantities of water, measured in cubic yards per 24 hours, to be taken from Lakes Sorell and Crescent and the Rivers Interlaken and Clyde, and permits the water in those two lakes to be conserved so long as there is a flow of water of 100,000 cubic yards every 24 hours down the River Clyde at the site of a permanent gauge at or near Bothwell.

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The applicants contend that one or more of the management plans, when in draft form, did not comply with the Water Management Act, s21, which imposes requirements as to the abrogation of prior rights to take water from a water resource.

5 The management plans contain very detailed provisions as to lake levels, flow rates, restrictions on rights to take water, and so forth. There is nothing in the material before me that further particularises the grounds of review so as to relate them to provisions in, or omissions from, the management plans. Similarly, there is nothing in the material before me that reveals anything about the considerations that the applicants say the Minister failed to take into account, the nature of their contentions as to unreasonableness or uncertainty, or any basis for their contention that the decision was contrary to the Lakes Sorell and Crescent Conservation Act.

6 A statement of reasons in respect of the Minister's decision was provided pursuant to the Judicial Review Act, s30(1). That statement contained a list of ten findings said to have been made by the Minister who made the decisions under review, and a list of evidence that he relied on. The items in respect of which discovery is unopposed are referred to in that list of evidence. The applicants contend that the other items are all mentioned in, or related to passages in, the statement of reasons. I will deal with those other items in numerical order.

7 The Water Management Act requires various steps to be taken when a water management plan is being prepared. Under s26, representations made by members of the public have to be forwarded to the Resource Planning and Development Commission with a report by the Secretary of the relevant department. Under s27(1), the Minister is required to direct the Commission to review the representations and the Secretary's report. The statement of reasons in this case reveals that the Minister gave the required direction on 16 June 2005. The applicants assume it was a written direction, and want discovery of it.

8 Under s27(2), the Commission has to decide whether or not to hold a hearing. In this case, it appears that the Commission decided not to hold one. Under s27(4)(a), when the Commission decides not to hold a hearing, it has to give written notice of that decision to the Minister. According to the statement of reasons, it gave such a notification on 26 July 2005. The applicants want discovery of the written notice given by the Commission to the Minister on that date.

9 It is conceivable, though perhaps unlikely, that either of these routine documents could contain one or more comments relevant to matters in controversy in these proceedings. Mr Turner submitted on behalf of the respondent that these two documents were of marginal relevance. There may be nothing in them, but the task of discovering them seems far from onerous. I therefore think it preferable that they be discovered in case they are of some use to the applicants.

10 This category of documents is described as follows:

"The internal notes and communications of Minister or Department evidencing his considerations of the Commission's report, the representations, and the Secretary's report, and any communications between the Minister or his Department and the Commission which resulted in the further amendments made to the Draft Plans which were ultimately submitted to the Minister for final approval."

11 The respondent might want to object to the production of one or more documents in this category on the basis of Crown privilege or some similar basis. No submissions were made to me about any such objection. It would be appropriate for any such objection to be taken when a sworn list of documents is filed, assuming of course that there is first an order for formal discovery of one or more classes of documents in respect of which such an objection may be taken.

12 It seems likely that documents in this category may reveal the thinking of the Minister in relation to matters in controversy in this proceeding. For the respondent, Mr Turner made a submission to the effect that the statement of reasons ought to be given the prominence it deserved. He referred me to the decision of the Victorian Court of Appeal in East Melbourne Group Inc v Minister for Planning [2008] VSCA 217; (2008) 254 ALR 112. However in this case the statement of reasons is lacking in detail as to such matters as lake levels, flow rates, and changes to allocations. It seems to me that it is going to be necessary for the judge who hears this application to look behind the management plans and the statement of reasons, and for evidence to be adduced as to their context and/or the decision-making process. I therefore think it is in the interests of justice for me to order discovery of the documents in this category, and to leave it to the respondent to take such objections, or to make such claims for privilege, as he thinks fit.

13 Under the Water Management Act, s28, a water management plan comes into existence when the Minister signs a certificate adopting a draft water management plan or an amended draft water management plan. According to the statement of reasons, the two management plans came into existence as a result of the Minister adopting two amended draft plans pursuant to s28 on 17 October 2005. The applicants are seeking discovery of "The document recording the Minister's decision to accept to [sic] adopt the amended Draft Plans dated 17 October 2005". Ordinarily, I would expect such a document to constitute a formal certificate containing nothing of forensic value. However the relevant paragraph in the statement of reasons says that on 17 October 2005 the Minister "accepted the principal recommendations made by the Commission in its review and adopted the amended Draft Plans". That suggests that he might have rejected one or more recommendations that were not principal recommendations, and that there might be a document recording the Minister's decision of 17 October 2005 that does contain something of forensic value. I think the Peruvian Guano test is satisfied, and that it is in the interests of justice to order discovery in relation to this item.

"All relevant State policies, relevant environmental agreements, and environmental improvement programmes taken into account by the Minister as set out in the paragraph numbered 2 of page 3 of the Minister's written statement of reasons."

15 Under the Water Management Act, s20(1)(a) and (b), when a draft water management plan is being prepared, the Secretary must have regard to the consistency of the plan with any relevant State policy, and "relevant environmental agreements and environmental improvement programmes". The statement of reasons referred to that requirement, but did not refer to any particular policies, agreements or programmes. The applicants contend that it is reasonable to infer that there must have been relevant policies, agreements and programmes. The fact that such things were mentioned suggests that it is likely they were taken into account. If any such policies, agreements or programmes were relevant, their existence could well be relevant to the applicants' contentions, at least in relation to unreasonableness and/or pre-existing water allocations. I would not expect discovery of them to be onerous. I think it is in the interests of justice that I order discovery of the items in this category.

16 According to the statement of reasons, the Minister made a finding that a species of fish known as Galaxias auratus or golden galaxias is found naturally only in Lakes Sorell and Crescent and their associated streams and wetlands, and that there is "an extensive body of peer reviewed scientific research on the species and its habitat requirements". The applicants are seeking discovery of the "extensive body of peer reviewed scientific research".

17 I cannot imagine how the taking into account of such research could be relevant to any contentions as to relevant considerations not being taken into account, uncertainty, or the requirements of s15 in relation to the demands and needs of existing and future water users. However s21 requires some balancing of the interests of the holders of prior water rights and statutory environmental objectives, and the applicants are also pursuing a contention as to unreasonableness. It therefore seems appropriate for the applicant to have access to the research on golden galaxias relied upon in the course of the decision-making process. I think it is in the interests of justice to order discovery of the documents in this category.

18 In the statement of reasons, the tenth and last item in the list of findings made by the Minister begins:

"In addition to the golden galaxias, the Lakes support other significant ecological values, including a number of wetlands of state, national and international significance, including the Ramsar listed Interlaken Lakeside Reserve."

19 The applicants are seeking discovery of "Documentation regarding the other significant ecological values relating to wetlands of state, national and international significance, including the Ramsar listed Interlaken Lakeside Reserve, which was taken into account by Commission Secretary and Minister ...".

20 It seems logical to suppose that the Minister based his finding of fact on documentary material. If so, that documentary material must satisfy the Peruvian Guano test, at least in relation to the applicants' contentions concerning unreasonableness and s21. In the circumstances, I think that the same considerations that apply in relation to item 11 must apply in relation to item 12, and that I should order discovery in relation to this item.

21 Finally, the applicants are seeking discovery of the following:

"13 All Ministerial and Departmental briefing papers on the River Clyde and Lake Crescent and Lake Sorrell [sic] relating to the decision of the Minister to adopt the Draft Plans;

14 All departmental submissions, briefing notes and memoranda relating to the Water Plan for the River Clyde, Lake Crescent and Lake Sorrell [sic] or the Draft Plans;

15 All correspondence from any other Tasmanian and the Commonwealth government department or statutory authority relating to or commenting on the Water Plans for the River Clyde, Lake Crescent and Lake Sorrell [sic];

16 All other documents considered or taken into account by the Minister or the Department relevant to the ultimate decision to adopt the Lakes Sorrell [sic] and Crescent Water management Plan and the Clyde River Water Management Plan."

22 I think these items are in the same position as item 7. There may be objections based on Crown privilege or some similar consideration but, given that the ministerial statement of reasons did not descend into more detail than it did, I think it just to order discovery.

23 For the reasons stated, the applicants have been entirely successful in relation to the discovery they have sought. I think it appropriate to order formal discovery so that objections as to Crown privilege and so forth can be appropriately taken. I therefore order that within 21 days the respondent make, file and serve a list of documents, verified by affidavit, in accordance with the forms prescribed by the Supreme Court Forms Rules 2000, in respect of the documents that are or have been in his possession, custody or power, limited to the documents and classes of documents listed in items 1 - 16 inclusive of annexure B to the applicants' interlocutory application dated 24 April 2009.