First Applicant v Respondent

Mr W Alstergren QC and Mr J Pizer QC each with Mr M Hosking

Legal and Regulatory Services, Taxi Services Commission

1 This is an application for preliminary discovery pursuant to r 32.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules). The applicants assert that they may have a right to various relief (including declarations and damages) against the respondent (TSC) in relation to its action and inaction in exercising its statutory functions regulating the commercial passenger vehicle industry. However, the applicants claim that they require additional information to assist them to decide whether to institute proceedings pursuing that relief.

2 In general, the documents sought go to the question of whether and to what extent the TSC lawfully performed or complied with its statutory duties as the regulator of the Victorian taxi and hire car industry pursuant to the Transport Integration Act 2010 (Vic) (TI Act) and the Transport (Compliance and Miscellaneous) Act 1983 (Vic) (TCM Act).

3 The first applicant, Victorian Taxi Families Inc (VTF), is a body corporate, incorporated and registered pursuant to the Associations Incorporation Reform Act 2012 (Vic) (Associations Reform Act).[1]

4 The membership of the VTF numbers approximately 700 individuals and entities who have owned taxi-cabs and taxi-cab licences or who have an interest or shareholding in a corporate entity which has owned, at material times, a taxi-cab or taxi-cab licence.[2]

5 The VTF asserts that since 2012 it, and a forerunner unincorporated association, has been, and continues to be, well recognised in Government circles as representing and advocating the commercial, regulatory and economic interests of small business taxi-cab owners and licence holders. The VTF assumed this role initially in response to the Fels Report,[3] and in the years since has consulted and liaised with Government and the opposition of the day, and other commercial passenger vehicle industry participants in response to legislative reform proposals and laws.[4]

6 The second applicant, Redfield Court Holdings Pty Ltd (Redfield), was at the time of the application, the registered owner of two taxi-cab perpetual licences.[5] One was purchased in 1996 for $295,000.00 and the other in 2006 for $450,000.00. The applicants contend that this constitutes a material economic interest in the TSC's due administration of commercial passenger vehicle laws.[6] Redfield has a direct economic interest in the transition assistance scheme administered by the TSC.

7 The TSC is the regulator of the commercial passenger vehicle industry in Victoria. The TSC is a body corporate established by s 115B(1) of the TI Act and is the licensing authority for the purposes of the TCM Act. The TSC is not immune from suit and by s 115B of the TI Act may sue and be sued.[7]

8 For the reasons set out below, Redfield, and not the VTF, may have a right to relief from the TSC arising from the possible breach of a common law duty of care (and a related declaration) in relation to the monitoring and enforcement of the licensing requirements of the law in relation to:

(a) ride-share operators and participants; and

(b) the failure to collect licence fees and the rebate of licence fees already paid,

giving rise to damage. Some categories of documents sought may be relevant to this right to relief and those documents are generally described in categories 3, 4, 5, 6, 7 and 9 in Annexure A to these reasons. It will be necessary for the parties to make further submissions as to the description of the documents to be discovered.

9 The application is supported by the affidavits of Sandra Spanos, the President of the VTF,[8] Mircina Mayas, the sole director and secretary of Redfield[9] and Bronwyn Lisa Lincoln, a partner of Corrs Chambers Westgarth (Corrs), the solicitors for the applicants.[10]

10 In response to the application, the TSC has filed the affidavits of Steven Brnovic.[11]

11 The application was heard over two days, some weeks apart. At the commencement of the second day the TSC raised the question of whether notice should have been given to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission (Commission) pursuant to s 35 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter Act). The applicants' lawyers had turned their minds to the question and had decided that notice was not required in this case. The TSC was of the same view. The matter then proceeded on the basis that the parties would deal with all the arguments and that if I determined that s 35(1)(a) of the Charter Act was engaged, then notice would be given. Notwithstanding this, the applicants gave notice under s 35 of the Charter Act on 1 November 2017. The Victorian Government Solicitors Office responded on behalf of the Attorney-General on 8 December 2017 that he would not intervene. The Commission responded on 8 January 2018 that it would not be intervening in the proceeding.

12 The TSC was established in July 2013 by the Transport Legislation Amendment (Taxi Services Reform and Other Matters) Act 2011 (Vic). That Act amended the TI Act and the TCM Act . The TSC's functions, duties and powers are contained in both of those Acts. The TI Act had replaced the Transport Act 1983 (Vic) as Victoria's principal transport statute and requires that all decisions affecting the transport system be made with regard to the vision, transport system objectives and decision-making principles established by the TI Act.[12] Consequently, the application of the TCM Act is subject to the overarching transport system vision, transport system objectives and decision-making principles in the TI Act.

13 The 'vision statement' is set out in s 6 of the TI Act and states:

The Parliament recognises the aspirations of Victorians for an integrated and sustainable transport system that contributes to an inclusive, prosperous and environmentally responsible State.[13]

14 Sections 24(1) and (2) of the TI Act mandate that the TSC, as a 'transport body', must have regard to the 'transport system objectives' (set out in pt 2 div 2 of the TI Act) and the 'decision making principles' (set out in pt 2 div 3 of the TI Act). The transport system objectives deal with subjects concerning 'social and economic inclusion' (s 8), 'economic prosperity' (s 9), 'environmental sustainability' (s 10), 'integration of transport and land use' (s 11), 'efficiency, coordination and reliability' (s 12) and 'safety and health and wellbeing' (s 13). The decision-making principles deal with such things as the principles of 'integrated decision making' (s 15), 'triple bottom-line assessment' (s 16), 'equity' (s 17), 'transport system user perspective' (s 18), and the principles of 'stakeholder engagement and community participation' (s 20) and 'transparency' (s 21).

15 The principle of stakeholder engagement and community participation means taking into account the interests of stakeholders, including transport system users and members of the local community and adopting appropriate processes for stakeholder engagement.

16 The principle of transparency means members of the public should have access to reliable and relevant information in appropriate forms to facilitate a good understanding of transport issues and the process by which decisions in relation to the transport system are made.

17 The TI Act and the TCM Act were, and as at the date of the hearing remained, the primary legislation governing the TSC's powers, duties and functions and commercial passenger vehicle law. The two Acts relevantly governed the TSC and the participants in the commercial passenger vehicle industry.

18 The primary object of the TSC is to regulate the commercial passenger vehicle industry. This is expressed in s 115E of the TI Act, which defines the objects of the TSC:

(1) The primary object of the TSC is to regulate the commercial passenger vehicle industry in a manner that -

(a) promotes the provision of commercial passenger vehicle services that are customer responsive, safe, competitive, efficient and accessible; and

(b) is consistent with the vision statement and the transport system objectives.

(2) Without limiting the generality of subsection (1), the primary object includes the following -

(a) to pursue and promote major and enduring improvements in the commercial passenger vehicle industry;

(b) to facilitate competition and innovation in the industry;

(c) to improve the safety of drivers and passengers of commercial passenger vehicles;

(d) to promote public confidence in the safety of the commercial passenger vehicle industry.[14]

19 The TSC's functions are set out in s 115F of the TI Act. They include:

(a) administering licensing, accreditation and other requirements imposed on participants in the commercial passenger vehicle industry (s 115F(1)(b));[15]

(b) administering grants made, or subsidy schemes established, in relation to the commercial passenger vehicle industry (s 115F(1)(c));

(c) promoting and monitoring compliance with any relevant legislation (s 115F(1)(d));

(d) monitoring, investigating and prosecuting breaches of any relevant legislation (s 115F(1)(db));

(e) conducting inquiries into any matter relating to the commercial passenger vehicle industry (s 115F(1)(dc));

(f) informing and educating the public about the operation and performance of the commercial passenger vehicle industry (s 115F(1)(dd)); and

(g) performing any other functions or duties conferred or imposed on the TSC under the TI Act or any other Act or regulations (s 115F(1)(f)).[16]

20 The TSC's functions also include advising the lead transport agency (the Head, Transport for Victoria (TfV)) in order to assist TfV in developing strategic policy and legislation in relation to the commercial passenger vehicle industry.[17] However, by s 115F(2) of the TI Act, the TSC's functions expressly do not include the function of developing strategic policy and legislation in relation to the commercial passenger vehicle industry.

21 The functions of the TSC that the applicants maintain to be relevant to the conduct, which the applicants have reasonable cause to believe give rights to obtain relief against the TSC, include the non-performance of express statutory duties and functions and ultra vires conduct of the TSC in respect of the administration of licence fees. The relevant functions are those in ss 115F(1)(b), (d) and (db) of the TI Act.

22 Commercial passenger vehicle means any motor vehicle (together with any trailer fore-car side-car or other vehicle or device, if any, attached thereto) which is used or intended to be used for carrying passengers for hire or reward but does not include a bus used to provide a bus service.[18] Generally, a commercial passenger vehicle must not operate on a highway unless it is licensed under pt VI div 5 of the TCM Act. The TSC may grant a commercial passenger vehicle licence to the owner or intending owner of a commercial passenger vehicle. Relevantly, two types of commercial passenger vehicle licences are hire car licences and taxi-cab licences.

23 A hire car licence is a commercial passenger vehicle licence in respect of a vehicle that operates or is to operate as a hire car. A hire car means a commercial passenger vehicle classified as a hire car by the licensing authority under s 145 of the TCM Act.[19] The TSC has classified any type of vehicle which is used or intended to be used to provide a commercial passenger service for the carriage of passengers on a pre-booked only basis (but excluding a special purpose vehicle) as a hire car.[20]

24 Taxi-cab means a commercial passenger vehicle which is used or intended to be used for hiring by the public on demand and which operates by being hailed or from a stand appointed for the use of such vehicles, or which has been previously booked or ordered but does not include such a vehicle which operates solely by being previously booked or ordered.[21] Taxi-cab licence means a commercial passenger vehicle licence in respect of a vehicle which operates or is to operate as a taxi-cab.[22]

25 Two types of taxi-cab licences are relevant for present purposes:

(a) Taxi-cab licences granted before 30 June 2014 have been granted on payment of a fee to the State and consideration of the application for licence. These licences are generally referred to as 'perpetual licences' or 'fixed term licences'. These licences are generally transferable under s 149 of the TCM Act or assignable under s 150 of the TCM Act. A transfer passes the 'ownership' of the licence whilst an assignment passes the right to operate a vehicle under the licence. These licences were considered a form of statutory right, with a recognised character of property, and were traded on the Bendigo Stock Exchange;[23] and

(b) Taxi-cab licences granted after 30 June 2014 are 'new taxi-cab licences'. New taxi-cab licences must be granted if the application for a new taxi-cab licence complies with the application requirements set out at ss 140 and 143 of the TCM Act. New taxi-cab licences are generally referred to as 'annual licences'. New taxi-cab licences may be conventional (ie, sedans) or wheelchair accessible taxi-cab (WAT) licences.

26 The TSC is the licensing authority.[24] Part VI div 5 of the TCM Act contains the provisions regulating applications for and the grant of taxi-cab and hire car licences, including the payment of fees. The overarching provision, as the applicants described it, is s 139 of the TCM Act, which prohibits a commercial passenger vehicle from operating on any highway unless it is licensed in accordance with div 5.[25] In its capacity as the licensing authority the TSC receives and administers applications for commercial passenger vehicle licences.[26] There is also a statutory accreditation necessary to operate and drive a commercial passenger vehicle.[27] Section 130 of the TCM Act provides that the purpose of accreditation is to facilitate the provision of safe and reliable taxi-cab services that meet reasonable community expectations.

27 Section 143 of the TCM Act sets out the powers of the TSC in respect of applications for taxi-cab licences and in respect of the administration and collection of statutory fees in respect of statutory licenses. The TSC is empowered to determine the fees payable[28] which take effect upon publication in the Government Gazette or upon any later date specified in a notice accompanying the publication of the fees in the Government Gazette.[29] The holder of a commercial passenger vehicle licence must pay the appropriate annual licence fee determined under s 147B of that Act, in respect of every commercial passenger vehicle for which the holder has a licence. This did not apply to the holder of a new taxi-cab licence, who was required to pay a licence fee as set out in s 147A(2B) of the TCM Act.[30]

28 Section 165 makes it an offence for a person to drive a commercial passenger vehicle (which is operating as a commercial passenger vehicle) on any highway without a driver accreditation. The TCM Act also creates offences; in particular, pursuant to s 158(1) it is an offence to own or operate a commercial passenger vehicle without a licence granted by the TSC.

29 The TSC's regulatory power is supported by extensive powers of investigation, including powers to enter into a commercial passenger vehicle or commercial passenger vehicle premises,[31] general inspection, inquiry and search powers after such entry,[32] the power of seizure and ancillary investigatory powers,[33] and the power to require production of information or documents and related items[34] and, in respect of certain powers, the privilege against self-incrimination is abrogated.[35]

30 Section 191YF of the TCM Act obliges the TSC to develop, maintain and review taxi industry monitoring, compliance and enforcement policy, the purpose of which:

is to support and promote maintaining compliance with, and enforcement of, a commercial passenger vehicle law or specified road safety law by -

(a) specifying proportionate, cost effective and efficient options in respect of monitoring and promoting compliance with, and enforcing, a commercial passenger vehicle law or specified road safety law; and

(b) specifying how options will be utilised by enforcement agencies to monitor and promote compliance with, and the enforcement of, a commercial passenger vehicle law and specified road safety law consistently.[36]

31 Section 191YF(3) requires the TSC to cause the taxi industry monitoring, compliance and enforcement policy to be published on the internet. Section 191YF(1) obliges the TSC to maintain and review the Policy.

32 The content of the taxi industry monitoring, compliance and enforcement policy is prescribed by s 191YI(1) of the TCM Act. Section 191YI provides that a taxi industry monitoring, compliance and enforcement policy must provide guidance on specified matters, including the exercise of monitoring and compliance powers, investigation powers and enforcement powers under a commercial passenger vehicle law or specified road safety law.

Persons involved in compliance, monitoring and enforcement activities under a commercial passenger vehicle law or specified road safety law must, so far as is reasonably practicable, have regard to an applicable taxi industry monitoring, compliance and enforcement policy when performing functions and duties and exercising powers under those laws.[37]

34 The policy in force until 2018 was the Taxi Services Monitoring, Compliance and Enforcement Policy 2015 (Policy).[38] The Policy states that the TSC exercises its statutory authority fairly and credibly. It specifically refers to stakeholder and community expectations that commercial and passenger vehicle safety standards will be set at appropriate levels and will be effectively enforced. It goes on to list five principles by which the TSC is guided:

(a) Accountable: To ensure full accountability, enforcement decisions and the conduct of staff will be explained and open to public scrutiny;

(b) Consistent: Like situations will be treated in a like manner. Industry participants need to have full confidence that the TSC's decision-making and actions will be equitable and that comparable situations will have comparable outcomes;

(c) Transparent: Industry participants must be in no doubt as to the criteria used by the TSC in coming to a decision. Decisions and their reasons must be clearly communicated to relevant stakeholders;

(d) Proportionate: Decisions made by the TSC will be proportionate to the identified risk to safety or the seriousness of any perceived breach and the level of non-compliance with legislative requirements;

(e) Fair and Reasonable: The TSC seeks to strike the right balance between assisting voluntary compliance and undertaking enforcement actions, while responding to the competing interests of industry participants, stakeholders, government and the public.

35 This Policy, when read together with the legislative powers referred to above, is said by the applicants to provide a benchmark against which the TSC's conduct can be assessed.[39]

Reform of the commercial passenger vehicle industry

36 Ride-sharing vehicles were not generally licensed to carry passengers for hire or reward. Ride-sharing is a popular description of transport services provided by a private driver, for a fee, on the demand of a prospective passenger, through a smartphone or computer application. At the relevant time, most ride-sharing services were provided by UberX.[40]

37 In late April 2014, the TSC commenced a targeted compliance and enforcement strategy against UberX vehicles. This involved the TSC undertaking covert journeys in UberX vehicles and issuing penalty infringement notices (PINs) to owners and drivers of unlicensed commercial passenger vehicles. The strategy was then extended to overt compliance activities, where TSC Officers booked the UberX vehicles, which were subsequently intercepted by uniform TSC officers who interviewed the drivers and if an offence was committed issued PINs. The TSC's compliance and enforcement strategy escalated beyond issuing PINs to filing charges against UberX drivers, using different methodologies for detecting unlawful behaviour.[41]

38 In September 2014, the TSC charged 12 UberX drivers with offences against s 158(1) of the TCM Act. In October 2014, the TSC sent to UberX (through its corporate entity, Uber Technologies Incorporated), a 'Cease and Desist' letter with respect to its unlawful activity. UberX did not comply with the letter. On 4 December 2015, the Magistrates' Court of Victoria found an UberX driver guilty of an offence against s 158 of the TCM Act as well as an offence of driving a commercial passenger vehicle without holding a driver accreditation. On 18 May 2016, following a successful appeal to the County Court of Victoria, the findings of guilt were set aside.[42]

39 By May 2016, the TSC had collected about $988,000 in fines for unlawfully operating commercial passenger vehicles against s 158(1) of the TCM Act. In late June 2016, the Victorian Government announced it would prepare legislation that would enable the legalisation of ride-sharing services.[43]

40 On 23 August 2016, the Victorian Government announced reform to the commercial passenger vehicle industry (August Announcement). The announcement was by media release. After some hyperbole, it stated:[44]

Over the next two years, the current licencing regime will be replaced by a single registration system that will ensure high standards for all commercial passenger vehicles, including taxis, hire cars and ride share services.

The reforms to the commercial passenger industry will see:

• $378 million made available to provide fair and reasonable assistance to licence holders to help them transition to the new legislative framework.
• A $75 million Fairness Fund to provide targeted support to industry participants experiencing immediate financial hardship as a result of these changes, including $25 million to improve access to convenient, reliable point-to-point transport for people with a disability.
• All commercial passenger vehicle providers charged a levy equivalent to $2 per trip to fund the transition to the new system including support for existing licence holders during the transition.
• All existing licences removed to allow for more flexible fares to drive competition and reduce the cost of travel for passengers.
• All drivers accredited by the TSC which will include passing police, medical and driving history checks and all drivers will be subject to ongoing criminal data matching.
• An Australian first of a dedicated Commissioner for disability services to the TSC.
• Rank and hail work only open to those providers that meet stringent requirements including cameras and fare meters.
• The ineffective, inefficient and costly Knowledge Test abolished and replaced by a simple system of industry accountability for all drivers.

...

The Government will draft legislation to be introduced into Parliament this year which will reduce the hire car licencing fee to zero. A second piece of legislation will be introduced into Parliament next year which will enable the long term reform.

These changes will open the door for more ridesharing and taxi services to hit the road and drive innovation, to provide more choice and better services for passengers.

41 On the same day, the Department of Economic Development, Jobs, Transport and Resources (Department) published more detail on its website as to the industry assistance package referred to in the media release. That industry assistance package consisted of three components: assistance payments for eligible licence holders (transition assistance); rebates to annual and peak service licence holders (rebate policy); and a hardship fund (later known as the fairness fund).[45] The transition assistance was for taxi and hire car licence holders that had perpetual or fixed term licences where the licence fee was paid up front (not in annual instalments). These licence holders would receive assistance payments, and annual fee paying licence holders would receive a rebate if they renewed their licences over the transition period. The transition assistance also included payments for a maximum of two licences, $100,000 for the first licence and $50,000 for the second licence, with some variations according to whether they were metropolitan or regional licence holders. The criteria for payments of transition assistance were published and provided to affected licence holders. Eligibility depended upon the nature and number of licences held between 15 August 2016 and 14 July 2017. If a licence holder held four or more taxi licences, they were eligible for $250,000 in transition assistance.[46]

42 The Government decided to relieve new taxi-cab licence holders of their obligation to pay annual licence fees.[47] The statutory obligation on licence holders to pay their relevant licence fee remained but the effect of the rebate policy was that the TSC would not collect or pursue the applicable licensing fee during a period of transition. The TSC would also make payments to licence holders who had already paid the licence fee. Application and administrative fees continued to be payable.[48]

43 On 30 November 2016, the Government announced that transition assistance would be payable for up to two further eligible licences (up to four licences in total) and reduced the timeframe for paying transition assistance.[49] There was no assistance given to licence holders with more than four perpetual licences revoked under the new legislation.

44 The Government's reform was to be set out in two bills which would be introduced into Parliament to give effect to the proposed reforms. It was not proposed that the industry assistance package would be the subject of that legislation.[50] The Commercial Passenger Vehicle Industry Act 2017 (Vic) (CPVI Act) contains no provision creating any rights to transition assistance or compensation for the revocation of taxi-cab licences, or any other licences.[51]

45 The CPVI Act does, however, recognise that transitional assistance will be provided. Amongst the 'main purposes' of the CPVI Act is:[52]

(a) to impose a levy on the carrying out of commercial passenger vehicle service transactions -

(i) to recover the cost of transitional assistance provided to certain participants in the commercial passenger vehicle industry; and

(ii) to partly fund the regulation of the commercial passenger vehicle industry; ...

46 Part 2 of the CPVI Act establishes a commercial passenger vehicle service levy. There is a specific regulation-making power to enable specification of the amount of the levy.[53] Section 20(2) provides that the Minister must not recommend the making of regulations specifying an amount of $1.00 or more as the amount of the levy, unless the Essential Services Commission (ESC) recommends the specification of that amount in accordance with s 20(3). Section 20(3) sets out that the ESC must not recommend the specification of an amount unless the ESC is satisfied that it is the lowest amount that is reasonably likely to result in the total amount of the levy collected within eight years of the commencement of pt 2 being equal to the money spent on transitional assistance.

47 Importantly, s 20(4) provides that for the purposes of s 20(3), the money spent on transitional assistance is the total amount paid by the State (whether as compensation or otherwise) to participants in the commercial passenger vehicle industry to assist those participants in relation to changes to the law that apply to that industry, compared with the law as in force immediately before the commencement of the Act.

48 In the lead up to the August Announcement, members of the Executive of the VTF had attended a number of meetings with the Minister for Transport, Ms Jacinta Allan, and members of her team. Some of the meetings came about because the VTF contacted the Minister's office and asked for a meeting. Others came about at the initiative of the office of the Minister. According to Ms Sandra Spanos, who is the President of the VTF, the VTF was recognised as a representative body of the taxi industry participants and a 'force' in the industry.[54] Under the leadership of Ms Spanos it nurtured relationships with the Government and Government agencies so as to have a voice in the reform debate.[55] Ms Spanos was invited, as President of the VTF, to participate in a Ministerial Forum set up by the Minister and also served on the forum's sub-committee on ride-sharing.

49 In the months preceding the August Announcement, and in the months following that announcement, there were changes made by the TSC to the collection of licence fees for both annual and fixed term licences. The then holders of annual and fixed term licences were no longer required to pay an annual licence fee of $23,017 as well as an administrative fee of $538. Instead, only the administrative fee was payable. If a licence holder had already paid the full amount of the annual licence fee, the TSC provided a refund of it.[56]

50 The TSC provided no reason for this change and the reduced fees were inconsistent with the gazetted annual fees for the 2016-17 financial year.[57] The changes to the fees payable were made through the TSC's website. The announcement was that the existing annual fee paying licence holders will be provided with a rebate for the licence fee over the transition period.[58]

51 The Commercial Passenger Vehicle Industry Bill 2017 (Vic) (CPVI Bill) was introduced into the Victorian Parliament on 22 February 2017. It received the Royal Assent on 22 August 2017 (now the CPVI Act). The Minister had announced the passing of the CPVI Bill in a media release issued on 23 June 2017. One effect of the new law was to revoke taxicab licences, both assigned and unassigned, and to replace these licences with a new taxi-cab licence. In the case of an assigned licence, the assignee would be provided with a new taxi-cab licence and the owner of that licence would be left with nothing. The law makes no provision for payment of compensation for the revocation of licence owners' property rights.

52 The membership of the VTF includes individuals who either directly or through family trusts, superannuation funds or corporate structures, have held perpetual licences for many decades, purchased perpetual licences from the Government for up to $500,000 and borrowed from banks and financial institutions in order to purchase a perpetual licence, providing the licence as security for the loan.[59]

53 These members often assigned the licences to operators who operated the vehicle and received the fare income. They therefore had assignment agreements in place at the time of the announcement of the reforms in August 2016. Before the August Announcement they were generating income in the order of $2,000 per month. After the announcement many of the assignees of members' licences stopped making monthly payments or sought to terminate the assignment agreements. This happened to Redfield.[60]

54 All of these licence types were subject to regulation by the TSC, and before the TSC was established, by the Victorian Taxi Directorate. There was a high level of active regulation and enforcement by the TSC, including prosecution of any taxi or hire car driver or operator who breached regulatory or other legislative requirements, the accreditation of drivers, the approval of all licence assignments and the requirement that any change of ownership of licences be approved by the TSC.[61]

55 In her role as President of the VTF, Ms Spanos saw the real and immediate impact of the Government's announcement in August 2016 on members of the VTF and on the value of their assets, including annual, fixed term and perpetual licences. From August 2016 onwards, Ms Spanos received hundreds of text messages, emails and telephone calls from members seeking information about the reforms and expressing their concerns for their businesses. Many of the members were directly affected by the reform process and faced bankruptcy and ill-health caused by stress. Ms Spanos continues to speak daily to members who hold taxi licences and who now struggle to maintain their businesses. She is informed by these members that they cannot compete with unlicensed ride-sharing services where those services have not been subject to equal regulation by the TSC and have not been required to acquire licences for their vehicles. She states that:

(a) vehicles used for ride-sharing are not subject to commercial passenger registration rates because they are not licensed. The difference between the annual VicRoads metropolitan registration fee for a domestic vehicle ($800.80) and a metropolitan licensed taxi cab ($2,800) is significant;

(b) vehicles used for ride-sharing are not required to be fitted with security cameras, cab charge machines, duress alarms, a trip meter, GPS tracking, EFTPOS machines and decals showing with which network the car is affiliated, and are not subject to regular inspection by the TSC for compliance with regulatory requirements; and

(c) drivers of ride-sharing vehicles do not have the significant overheads of either loan repayments for the purchase of perpetual licences or ongoing assignment fees for perpetual, annual or fixed term licences.[62]

56 The VTF maintains that the TSC's failure or refusal to enforce its monitoring, compliance and enforcement policy[63] and the licensing laws in respect of all participants in the commercial passenger vehicle industry, and in particular against those engaged in ride-sharing services, has had a devastating impact on members of the VTF and on all licensed participants in the industry.[64]

57 The position of licence holders deteriorated further after the publication of the Bill in February 2017. Because of the proposal in the Bill to revoke all perpetual licences, they became worthless immediately. No one was interested in purchasing a licence which was to be revoked. Annual licences and other fixed term licences were also no longer valued by participants in the industry, particularly when collection of the annual fees was apparently abandoned, and all fees were rebated by the TSC.[65] According to Ms Spanos, from her own observation, both the introduction of unlicensed ride-sharing services and the apparent failure of the TSC to enforce the prohibition on carrying passengers for reward without being licensed has adversely impacted on the value of taxi-cab licences.[66]

58 Ms Spanos gives evidence of ride-sharing services operated by Uber doing so illegally at major Melbourne events over the 12 months prior to September 2017. There were unofficial Uber ranks set up at the Caulfield Race Course for the Caulfield Cup on 15 October 2016 and at the Grand Prix in March 2017. There is no evidence of any action being taken by or on behalf of the TSC in relation to these activities. When Ms Spanos enquired of the TSC regarding these activities she was told that no action could be taken because the ranks were on private land.[67]

59 These activities led Ms Spanos to believe that the Government or the TSC, or both, had decided not to enforce the licensing laws for political reasons, including not alienating consumers who liked to use rideshare services. But the VTF has been unable to obtain sufficient information from its enquiries to decide whether to bring an action against the TSC for conduct which it believes shows that it has not enforced and upheld the laws which it was its function and duty to do. Ms Spanos deposes that the Government and the TSC has disclosed much information during the reform period but not whether the TSC or the Minister decided to facilitate rideshare competition with the licensed taxi-cab sector:

In terms which chose winners and losers and a failure to maintain or deliberate disobedience of the law or a failure to observe commercial passenger vehicle laws or allowing the TSC to exercise discretion it did not have to treat the licensing laws and fee administration as obligatory for some but discretionary for others.[68]

Preliminary discovery - applicable principles

Where -

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

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

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

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

61 There are thus three matters that the applicants must satisfy:

(a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court against the TSC;

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

(c) there is reasonable cause to believe that the TSC has or is likely to have had in its possession any document relating to the question whether the applicant has the right to obtain that relief and that inspection of the document by the applicant would assist the applicant to make the decision (whether to commence proceedings to obtain that relief).

62 In Schmidt v Won,[69] Ormiston JA, with whom Charles and Batt JJA agreed, explained the purpose of, and the Court's approach to, the rule:

The rule, first introduced in 1986, should be construed benevolently because its intention was both to assist claimants without sufficient, precise information to launch an action and to prevent the bringing of speculative suits. Applications, however, must not be based upon "mere hunches" or such flimsy foundations as will not satisfy the requirement that "reasonable cause" should be shown for the necessary belief. That is not to say, however, that some form of "fishing" enquiry is not justified under the rule; indeed it is the very purpose of the rule to permit an enquiry of this kind, if the required conditions are made out.[70]

63 In Beston Parks Management Pty Ltd v Sexton (Beston Parks),[71] Hollingworth J said in relation to the application of r 32.05:[72]

The following general principles are not controversial. The rule should be construed benevolently, because it is intended to assist an applicant who does not have sufficient, precise information to commence a proceeding, and to prevent the bringing of speculative suits. It must be given the fullest scope its language will reasonably allow.

It is not necessary to show precisely what cause of action the applicant may have, merely that the facts are such from which it may reasonably be believed that the applicant may have a right to obtain relief. The word 'may' indicates that the putative belief does not have to amount to a firm view that there is a right to relief. Although some 'fishing' enquiry is permitted, a 'flimsy foundation' or 'mere hunch' will not be sufficient to constitute reasonable cause. An applicant does not have to prove that there will be, only that there may be, a real benefit from making the order. The benefit may be the drawing of an appropriate pleading with proper particulars and the avoidance of substantial amendment after discovery, or, alternatively, the possible avoidance of unnecessary and fruitless litigation.

64 In St George Bank Ltd v Rabo Australia Ltd (St George)[73] which concerned the [then] relevantly identical Federal Court Rule, O 15A r 6, Hely J observed that at its lowest level, subpara (a) requires that there be reason to believe that the applicant may have the right to obtain relief in this Court. On the facts of that case, Hely J noted at para [29] that:

Whilst St George does not need to go so far as to establish a prima facie case, St George does have to establish that there is reasonable cause to believe that each of the necessary elements of a potential cause of action exists. The evidence must incline the mind to the view that Rabo and/or Rabo CF deliberately withheld material information from St George. The threshold test under subparagraph (a) may be set at quite a low level ... but, as I have said earlier, it is not sufficient to point to a mere possibility that St George may have a claim, and that claim is completely dependent on the as yet unknown facts.

65 In St George,[74] Hely J noted that whilst uncertainty as to only one element of a cause of action might be compatible with the 'reasonable cause to believe' required by subparagraph (a), uncertainty as to a number of such elements may be sufficient to undermine the reasonableness of the cause to believe. Hely J (at para [26], citing John Holland Services Pty Ltd v Terranora Group Management Pty Ltd)[75] said that '[i]f there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action'.[76]

66 In the recent decision of Alex Fraser Pty Ltd v Minister for Planning,[77] Riordan J observed in relation to the first prerequisite (r 32.05(a)) that it:

(a) does not direct attention to any belief of the applicant. Rather it requires reasonable cause for a hypothetical belief;[78]

(b) the authorities that draw the distinction between a reasonable cause to believe and a 'suspicion', 'mere hunch' or 'conjecture' are merely emphasising that a belief is not sufficient - there must be reasonable cause for the belief;[79]

(c) the critical element of the test is reasonableness rather than whether the circumstances would cause a belief as opposed to a suspicion or some other hypothetical state of mind;[80] and

(d) a reasonable suspicion, conjecture or assertion may each fall within the ambit of a reasonable belief;[81]

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

(i) there is cause for a belief in the relevant proposition - a belief being an inclination of the mind towards assenting to a proposition.

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

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

68 For these reasons, Riordan J concluded that the jurisdictional threshold under r 32.05 is low, which is consistent with the following:[83]

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

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

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

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

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

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

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

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

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

69 Having regard to these authorities, and others, the principles relevant to the first prerequisite may be summarised as follows:

(a) the applicant is not required to show that it has a prima facie case to a right to relief against the respondent;[84]

(b) it is also not necessary to show precisely what cause of action the applicant may have; such a requirement would defeat the object of the rule;[85]

(c) rather, it merely needs to be shown that the facts are such that it may reasonably be believed that the applicant may have a right to obtain relief;[86]

(d) the test for determining whether the applicant has 'reasonable cause to believe' is an objective test;[87]

(e) the word 'may' indicates that the applicant's belief does not have to amount to a firm view that there is a right to relief;[88] and

(f) delving extensively into the merits of the existence of a possible cause of action will usually not be appropriate.[89]

70 The second prerequisite is governed by the following principles:

(a) the onus is on the applicants to make it appear to the Court that, having made reasonable inquiries, they are unable to obtain sufficient information to decide whether or not to commence proceedings;[90]

(b) that the applicant first make all reasonable inquiries prescribes an objective assessment of whether an applicant has reasonably exhausted alternative sources of information and having done so demonstrates that they have insufficient information to enable a decision to be made to commence a proceeding. The applicant must disclose what information they already have to make a decision whether to commence a proceeding in court and identify what information is lacking;[91]

(c) unless the applicant is lacking something reasonably necessary to make a decision whether to institute proceedings, it is not entitled to preliminary discovery;[92]

(d) the requirement is primarily concerned with whether, as an objective fact, an applicant has sufficient information to determine whether to commence proceedings.[93] The fact that an applicant for preliminary discovery already has enough evidence to establish a prima facie case against the respondent does not mean that the applicant has sufficient information to enable it to decide whether to commence a proceeding.[94] An applicant in that position may nevertheless 'need information to know whether the cost and risk of litigation is worthwhile'.[95] For example, an applicant with sufficient information to plead a prima facie case may prudently wish to obtain preliminary discovery about 'what defences are available to the respondent and the possible strength of those defences, or to determine the extent of the respondent's breach and the likely quantum of any damages award';[96]

(e) it is for the Court to determine whether an applicant has sufficient information available to it; the applicant's own assertion that it does not is neither determinative nor strictly necessary;[97]

(f) accordingly, an application cannot succeed if the applicant has sufficient information (objectively assessed) but is unable to determine whether to commence proceedings due to subjective factors, for example, an overly cautious nature;[98]

(g) courts have, however, approved litigants taking a cautious, conservative or prudent approach by applying for preliminary discovery under the rule.[99] This approach is consistent with the policy underlying the rule.[100] It is also consistent with the policy underlying the Civil Procedure Act 2010 (Vic) ('CPA') generally, and the 'proper basis certification' requirements in s 42 of the CPA in particular;[101]

(h) if there is evidence that an applicant has in fact decided to commence proceedings, the application must fail.[102] In determining whether an applicant has in fact already decided to commence a proceeding, irrespective of the outcome of the application, the Court should not give too much weight to posturing in correspondence prior to the making of the application, particularly correspondence alleging the existence of a strong case but nevertheless seeking preliminary discovery by letter prior to making a formal application to the Court;[103] and

(i) what constitutes 'reasonable inquiries' is a question of fact, to be considered in all the circumstances of the particular case.[104]

(a) 'possession' means 'possession, custody or power';[105]

(b) there must be a reasonable cause to believe that the respondent 'has or is likely to have or has had or is likely to have had in that person's possession any document relating to the question whether the applicant has the right to obtain the relief'. This requires the identification of documents that relate to the question whether the applicant has the right to obtain the relief; and

(c) that inspection of the document by the applicant would assist the applicant to make the decision. This involves consideration of what the applicant lacks and what is reasonably necessary for it to make a decision regarding whether to institute proceedings. That involves consideration of what the applicant has to advance its right to relief.

72 Where each element of the rule is satisfied, the Court will ordinarily exercise its discretion in favour of the applicant.[106]

73 In the course of oral submissions the TSC objected to the use of certain evidence by the applicants, being:

(a) Exhibit SB:04, which is an extract from the transcript of a hearing before the Inquiry into the CPVI Bill conducted by the Economy and Infrastructure Committee of the Victorian Parliament (EI Committee), dated 23 May 2017;

(b) Exhibit BLL:9, which is a report of the Scrutiny of Acts and Regulations Committee of the Victorian Parliament dated 7 March 2017;

(c) Exhibit BLL:10, which is a report of the Scrutiny of Acts and Regulations Committee of the Victorian Parliament dated 21 March 2017;

(d) Exhibit BLL:11, which is a report of the EI Committee dated 8 June 2017;

(e) Exhibit BLL:13, which is another extract from the transcript of a hearing before the Inquiry into the CPVI Bill conducted by the EI Committee, dated 23 May 2017;

(f) Exhibit BLL:15, which is a written submission made to the Inquiry into the CPVI Bill conducted by the EI Committee, dated 31 May 2017; and

(g) Exhibit BLL:22, which is an extract from Hansard recording the debate on the CPVI Bill in the Legislative Council of the Victorian Parliament on 23 June 2017.

74 The basis of the TSC's objections was that the use of such evidence contravened parliamentary privilege. Section 10(1) of the Evidence Act 2008 (Vic) preserves parliamentary privilege, providing:

This Act does not affect the law relating to the privileges of any Australian Parliament or any House of any Australian Parliament.

75 Section 19(1) of the Constitution Act 1975 (Vic) provides:

The Council and the Assembly respectively and the committees and members thereof respectively shall hold enjoy and exercise such and the like privileges immunities and powers as at the 21st day of July, 1855 were held enjoyed and exercised by the House of Commons of Great Britain and Ireland and by the committees and members thereof, so far as the same are not inconsistent with any Act of the Parliament of Victoria, whether such privileges immunities or powers were so held possessed or enjoyed by custom statute or otherwise.[107]

76 To ascertain what were the relevant privileges immunities and powers enjoyed and exercised by the House of Commons on 21 July 1855, it is necessary to start with the Bill of Rights 1688 (Bill of Rights),[108] art 9 of which provided:

Freedom of Speech - That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament.[109]

77 The Commonwealth Parliament has purported to state the effect of art 9 (without limiting its effect) in s 16 of the Parliamentary Privileges Act 1987 (Cth) (PPA), which provides:

(1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.

(2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:

(a) the giving of evidence before a House or a committee, and evidence so given;

(b) the presentation or submission of a document to a House or a committee;

(c) the preparation of a document for purposes of or incidental to the transacting of any such business; and

(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.

(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

(4) A court or tribunal shall not:

(a) require to be produced, or admit into evidence, a document that has been prepared for the purpose of submission, and submitted, to a House or a committee and has been directed by a House or a committee to be treated as evidence taken in camera, or admit evidence relating to such a document; or

(b) admit evidence concerning any oral evidence taken by a House or a committee in camera or require to be produced or admit into evidence a document recording or reporting any such oral evidence;

unless a House or a committee has published, or authorised the publication of, that document or a report of that oral evidence.

(5) In relation to proceedings in a court or tribunal so far as they relate to:

(a) a question arising under section 57 of the Constitution; or

(b) the interpretation of an Act;

neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission in evidence of a record of proceedings in Parliament published by or with the authority of a House or a committee or the making of statements, submissions or comments based on that record.

(6) In relation to a prosecution for an offence against this Act or an Act establishing a committee, neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission of evidence, the asking of questions, or the making of statements, submissions or comments, in relation to proceedings in Parliament to which the offence relates.

(7) Without prejudice to the effect that article 9 of the Bill of Rights, 1688 had, on its true construction, before the commencement of this Act, this section does not affect proceedings in a court or a tribunal that commenced before the commencement of this Act.[110]

78 The PPA was passed in consequence of the decisions of Cantor J and of Hunt J in R v Murphy,[111] with a view to clarifying the scope or operation of the Bill of Rights in certain particulars.[112]

79 The TSC submitted that s 16(3) codifies the effect of art 9 of the Bill of Rights. This view gains its support from the language of s 16(1), from the Second Reading Speeches in the House and the Senate when the Bill for the PPA was before each House of the Parliament[113] and from the Privy Council decision of Prebble.[114] In Prebble, Lord Browne-Wilkinson, giving the Speech for the Privy Council, said:

That Act, therefore, declares what had previously been regarded as the effect of article 9 of the Bill of Rights 1689 and s 16(3) of the Act of 1987 contains what, in the opinion of their Lordships, is the true principle to be applied.[115]

80 There are, however, views that s 16 of the PPA extends the operation or effect of art 9:

(a) in Rann v Olsen, Doyle CJ (Mullighan J agreeing) proceeded on the hypothesis that s 16 extends the reach of art 9 of the Bill of Rights.[116] He considered that the language of s 16(1) indicates that Parliament contemplated that the subsequent provisions of s 16 might have an operation additional to that of art 9, and s 16(7) contemplates that s 16 might have an operation different from art 9, which might be wider or narrower. Prior J considered that the section was declaratory of the privilege or immunity conferred by art 9.[117] Perry J considered s 16 extended the operation of art 9 because art 9 is not couched in terms that address the purpose for which the impeaching of questioning might be directed, whereas s 16(3) is so framed by the use of the words '...by way of, or for the purpose of...'.[118] He further considered that the ambit of s 16(3) is so wide that it is unlikely that the scope of any residual operation of art 9 could amount to much.[119] Lander J did not consider it necessary to assess whether the PPA is declaratory of art 9;

(b) in Mees v Roads Corp,[120] Gray J considered that, because of the views expressed in Pepper v Hart,[121] there must be some doubt as to whether s 16(3) is merely a codification of the law, or effects a change in the law by enlarging the privileges of Parliament; and

(c) at least one learned author has expressed the view that s 16(3) goes beyond mere codification.[122]

81 It is neither necessary nor appropriate in this case to resolve the question of whether s 16 of the PPA codifies or extends the operation of art 9 of the Bill of Rights, because whichever is applicable the admissibility of much of the material sought to be tendered is tolerably clear, as I shall refer, after referring to some further authorities and attempting a form of summary of the law as to parliamentary privilege.

82 Most of the cases on the interpretation of art 9 of the Bill of Rights and s 16 of the PPA concern issues raised in defamation cases. Mees v Roads Corp[123] was not a defamation proceeding. It concerned the tender in evidence by the respondents of the Hansard reports of statements made by the second respondent, Mr Batchelor, the Minister for Transport, to the Legislative Assembly of the Victorian Parliament, that there was no plan to build a freeway linking the Eastern Freeway with the Metropolitan Ring Road, and a question and answer in the Legislative Council on the same subject. It was contended that these reports could be tendered and relied upon to establish the truth of the statements, but could not be questioned. In that case Gray J provides an analysis of parliamentary privilege and said:

It appears to have been established that a court is able to receive evidence, by way of the tender of the records of parliamentary proceedings in Hansard, that a particular member addressed the House on a particular date at a particular time, because this is nothing other than historical record. At one time, there was a controversy as to whether the court could receive evidence of the words spoken, as distinct from evidence that something was said, but this appears to have been resolved in favour of the view that the words spoken can be tendered in evidence. See Comalco Ltd v Australian Broadcasting Corporation (1983) 78 FLR 449 at 451 - 453 and Buchanan v Jennings [2002] NZCA 363; [2002] 3 NZLR 145 at 158 - 159. The English courts do not appear to have found it difficult to examine the content of a statement to parliament in one circumstance. That is where the statement contains a minister's reasons for a decision of which judicial review is sought. Apparently, examination of the content of such a statement, even for the purpose of considering whether the decision is so unreasonable that no reasonable decision-maker could have made it, is not considered to be impeaching or questioning the statement. See R v Secretary of State for the Home Department; Ex parte Brind [1991] UKHL 4; [1991] 1 AC 696. With this exception, it seems that any form of critical examination of the content of what has been said to parliament will not be undertaken by a court. It is certainly not permissible to tender the content of a statement to parliament for the purpose of proving that it was false or misleading. See Amann Aviation Pty Ltd v Commonwealth of Australia [1988] FCA 24; (1988) 19 FCR 223, a case decided under the Parliamentary Privileges Act 1987 (Cth), and Hamilton v Al Fayed [2000] UKHL 18; [2001] 1 AC 395 at 403 per Lord Browne-Wilkinson, with whom the other members of the House of Lords agreed.

One possibly controversial question is whether it is permissible for a court to rely on the content of a statement to parliament as evidence of the truth of a fact stated. On one view, this would be far removed from impeaching or questioning the statement. It would be accepting the correctness of the statement. The difficulty is that such a use of a statement to Parliament would operate to the disadvantage of the party against whom it was used. That party would be unable to contend for the absence of the truth of the facts stated without impeaching or questioning the statement itself.[124]

83 Gray J considered a number of authorities, including the decision of the House of Lords in Pepper v Hart:[125]

The proposition that a statement made to Parliament can be tendered to a court to prove the truth of its contents, but that the truth of its contents cannot be the subject of any contest in the court, is fraught with difficulty. If accepted, it would have the effect of enabling a member of Parliament to create unchallengeable truth with respect to a factual situation, simply by making a statement to Parliament containing assertions of fact. The notion of manufactured truth is irreconcilable with the duty and function of a court to find the facts relevant to the issues in dispute in a case before it. Issues would arise as to the length of time for which a statement to Parliament could be considered operative to compel acceptance by a court of the facts stated. The unacceptability of the proposition is demonstrated by postulating the existence of more than one statement to Parliament, when there is a conflict between the statements. Plainly, a court could not be placed in the situation in which opposing parties tender the conflicting statements and the court is obliged to accept the truth of each of them. There are therefore many sound reasons for taking the view that it is not open to a party to tender a statement made to parliament as evidence of the truth of the facts stated.[126]

I am therefore of the view that it is open to the respondents in the present case to tender the Hansard reports of the statements made to the Victorian Parliament on 9 October 2001 and 19 March 2002. Those records can only be tendered for the purpose of establishing that those words were said to Parliament. The court is not able to accept the truth of anything stated in them for the purpose of determining the issue before it, ...[127]

84 It is well established that proceedings before Parliamentary Committees, including the evidence given by non-parliamentarians before such committees, are 'proceedings in Parliament' within the meaning of art 9.[128]

85 The TSC also submitted that parliamentary privilege operates to prevent evidence of a proceeding in Parliament from being admitted for the purpose of drawing any inference from that proceeding in Parliament, even if the truth of the proceeding in Parliament is not called into question.[129]

86 The applicants submitted that, in Australia, the Courts have proceeded on the basis that there is no breach of art 9 if the Court receives and makes use of evidence of parliamentary proceedings for non-contentious purposes.[130] This is also the position under s 16(3) of the PPA.[131] In my view this is correct as long as it is understood that a non-contentious purpose is very limited, as the cases cited in support of this proposition show, and do not permit either party or the Court to rely on the truth of the statements constituting the 'proceeding in Parliament'.

87 The authorities relied on by the applicants begin with Sankey v Whitlam, in which Gibbs ACJ merely confirmed

that a member of Parliament, even if he has not obtained the permission of the House, cannot object to giving evidence of facts that occurred in the course of a sitting of Parliament, such as that a particular member spoke (without disclosing what he said) or was present and acted in a particular capacity (for example as Speaker, or as a peer). The fact that documents were tabled (without disclosing who tabled them) seems to be evidence of the same kind, ie merely of an event which happened, and must be divulged by a member called as a witness, even without the consent of the House.[132]

88 Then Finnane v Australian Consolidated Press is referred to_._ In that case Needham J followed the decision of Browne J in Church of Scientology v Johnson-Smith[133] where it was said that the reproduction in Court either by tender of Hansard, or any other procedure, of debates in Parliament would be a breach of parliamentary privilege.[134] He went on to say, however, that Parliament was unlikely to complain about the use in Court of debates in Parliament if they were used for a limited purpose; namely, merely proof of what was said. He went on:

If anything further were to be adventured, for example, comments on the material by counsel or, no doubt, by the court, that would be a matter in which it would be likely that the House would exercise its privileges and, if necessary, enforce the prohibition on breach of them.[135]

89 In Mundey v Askin,[136] a defamation action arising from an election speech, Hansard was admitted into evidence to prove, as a fact, that that certain things had been said in the course of a debate in the Legislative Assembly. The Court of Appeal said that:

It was submitted that this tender is [sic] some way constituted a breach of Parliamentary privilege, and reliance was placed upon Church of Scientology of California v Johnson-Smith [1972] 1 QB 522. There it was held that what was said or done in Parliament in the course of proceedings there could not be examined outside Parliament for the purpose of supporting a cause of action, even though the cause of action itself arose out of something done outside Parliament. The reason for its exclusion is, no doubt, to prevent any inquiry into the motives or intentions of Members of Parliament in anything they said or did in the House. But that principle has nothing to do with the present case. Here, Hansard was tendered to prove, as a fact, that certain things had been said in the course of a debate in the Legislative Assembly. There was no question of any further examination of the circumstances in which the debate had taken place or the motives of the participants, or of anything else which might infringe the privilege of Parliament. The ratio of Johnson-Smith's case therefore does not apply. Indeed, in that case (at p 531) Browne J said this:

'But the Attorney-General limited what he said about the probable attitude of Parliament to the use of Hansard by agreement by saying that Hansard could be read only for a limited purpose. He said it could be read simply as evidence of fact, what was in fact said in the House, on a particular day by a particular person.'[137]

90 In Henning v Australian Consolidated Press Ltd, Hunt J followed Mundey v Askin and held that Hansard could be used to prove what was stated in Parliament but that:

Parliamentary privilege is properly invoked to prevent any inquiry into the motives and intentions of Members of Parliament in relation to anything they said or did in Parliament.[138]

91 R v Secretary of State for Trade; Ex parte Anderson Strathclyde plc[139] was an application for judicial review. Dunn J found no distinction between using a report in Hansard to support a cause of action arising from something that occurred outside the House and using it to support a ground for relief in a judicial review proceeding in respect of something that occurred outside the House. He said:

In both cases the court would have to do more than take note of the fact that a certain statement was made in the House on a certain date. It would have to consider the statement or statements with a view to determining what was the true meaning of them, and what were the proper inferences to be drawn from them. This, in my judgment, would be contrary to Art 9 of the Bill of Rights. It would be doing what Blackstone said was not to be done, namely to examine, discuss and adjudge a matter which was being considered in Parliament. Moreover, it would be an invasion by the court of the right of every member of Parliament to free speech in the House with the possible adverse effects referred to by Browne J.[140]

92 In Amann Aviation Pty Ltd v Commonwealth of Australia,[141] Beaumont J considered the admissibility of a question to, and answer given by, Senator Evans, as Minister for Transport and Communications, in the Australian Senate. The purpose was to establish that the defendant was not ready willing and able to perform its obligations under a 'coastwatch' contract. That was, obviously, a contentious purpose. The extract from Hansard was to be used to impugn the conduct of Senator Evans, and that involved the purpose of 'questioning the motive, intention or good faith' of the Senator and was proscribed by s 16(3)(b) of the PPA. In the course of coming to that conclusion, Beaumont J reviewed many of the authorities referred to above which turn on art 9 of the Bill of Rights and not the PPA. After referring to the purpose of the tender as involving impugning the conduct of the Senator, his Honour observed:

[I]f the tender were for a non-contentious purpose, for instance, to prove that certain documents were tabled in Parliament, without disclosing who tabled them (see Sankey v Whitlam, supra (CLR at 357)), or, as in Turnbull, to prove the time of proceedings. If what is involved in a tender of evidence from Hansard is simply not capable of being contentious, it is difficult to see how the right of free speech could be affected.[142]

93 The authorities (some of which are referred to above) enable some general propositions to be stated, as follows:

(a) the whole of the law and custom has its origin in this one maxim, 'that whatever matter arises concerning either House of Parliament, ought to be examined, discussed and adjudged in the House to which it relates, and not elsewhere';[143]

(b) Article 9 is one manifestation of a wider principle: that the courts and Parliament are astute to recognise their respective constitutional roles. They do not intrude into the spheres of one another except when that is essential to the proper performance of a constitutional role;[144]

(c) where art 9 speaks of 'impeached' it means 'hindered, impeded or impaired' in a court;[145]

(d) the basic principle underlying art 9 is the need to ensure so far as possible that a member of the legislature and witnesses before committees of the House can speak freely without fear that what they say will later be held against them in the courts. The important public interest protected by such privilege is to ensure that the member or witness, at the time that they speak, is not inhibited from stating fully and freely what they have to say. If there were any exceptions which permitted their statements to be questioned subsequently, then at the time when they speak in Parliament, they would not know whether or not there would subsequently be a challenge to what they were saying. Therefore, they would not have the confidence the privilege is designed to protect;[146]

(e) the law as to the privileges of Parliament does not include a rule that evidence of the proceedings of Parliament is inadmissible except with the consent of Parliament.[147] There is no objection to the use of Hansard to prove what was done and said in Parliament as a matter of history. But an allegation that what was done or said with an allegation of impropriety or any other questioning is not permitted;[148]

(f) it is not open to a party to tender a statement made to parliament as evidence of the truth of the facts stated.[149] If s 16 of the PPA codifies the effect of art 9 of the Bill of Rights, it is doubly clear that it is not open to a party to tender such a statement as evidence of its truth, because s 16(3)(a) provides:

In proceedings in any court ... it is not lawful for evidence to be tendered ... concerning proceedings in Parliament, by way of, or for the purpose of ... relying on the truth ... of anything forming part of those proceedings.

(g) the way in which the Court complies with art 9 of the Bill of Rights, and with the law of the privileges of Parliament, is by refusing to allow the substance of what was said in Parliament to be the subject of any submission or inference.[150] The Court upholds the privileges of Parliament, not by a rule as to the admissibility of evidence, but by its control over the pleadings and the proceedings in Court;[151]

(h) the privilege operates retrospectively to things done or said in the past,[152] and prospectively to protect acts done for the purpose of or incidental to the transacting of parliamentary business;[153]

(i) the privilege extends to prohibiting the compulsory production for inspection of discovered documents prepared for the purpose of transacting the business of a House of Parliament or of a committee,[154] or other compulsory court processes of that kind;[155]

(j) the use of clear Ministerial statements as an aid to the construction of ambiguous legislation does not amount to questioning or impeaching proceedings in Parliament or otherwise contravene art 9 of the Bill of Rights;[156] and

(k) the privilege is that of the House of Parliament and not of the member who has acted or spoken.[157]

94 In the circumstances of this case, where a party seeks to rely on something said or done in Parliament or a committee of Parliament, and a question of parliamentary privilege is raised, then, in the exercise of its general jurisdiction in regulating its own proceedings, the Court will decide whether the relevant action will breach parliamentary privilege and will refuse to allow the particular matter to be ventilated, or the particular evidence to be tendered.[158] In order to make the determination the Court receives the evidence provisionally for the purpose of a temporary and conditional examination in order to enable the court to inquire whether the reception of the extract into evidence is, or is not, prohibited.[159] In regulating its conduct in this way, the Court is endeavouring to ensure that neither it nor the parties before it question or impeach any speech, debate or proceedings in Parliament.[160]

95 Exhibit SB:04 to the first Brnovic affidavit is an extract of the transcript of evidence from the Inquiry into the CPVI Bill by the EI Committee. At the outset, the Chair of the Committee records that '[a]ll evidence taken at this hearing is protected by Parliamentary privilege'.[161] Because the transcript records evidence given to a Committee of the Victorian Parliament it is a part of a 'proceeding in Parliament' within the meaning of art 9 of the Bill of Rights.

96 The TSC submitted that it relies on Exhibit SB:04 only for the purpose of demonstrating that the information in that document is available to the applicants for the purpose of determining whether to commence a proceeding in the Court against the TSC. This is unhelpful because it amounts to a contention that the applicants can use the transcript to decide whether to commence proceedings, whilst acknowledging that the transcript cannot be used in the proceedings to establish the truth of its contents. To achieve its purpose, the TSC must be taken to introduce the transcript into evidence in this proceeding as to the truth of its contents and not merely as to the fact that it was said. It is therefore not admissible for that purpose.

97 The applicants seek to use statements of Mr Richard Bolt, the Secretary of the Department, in the transcript in Exhibit SB:04 to draw the inference that the TSC has the documents sought in Categories 1 and 2.[162] The drawing of inferences from the evidence given is also not permitted by the privilege.

98 Exhibit BLL:8 to the first Lincoln affidavit is a copy of the Second Reading Speech and Statement of Compatibility for the CPVI Bill. As I understand the evidence of Ms Lincoln, it is exhibited for the purpose only of evidence of the fact and date of it. It is accordingly admissible.

99 Exhibit BLL:9 is an extract from a Report of the Scrutiny of Acts and Regulations Committee (SARC) dated 7 March 2017 and published as 'Alert Digest No 3 2017', concerning the CPVI Bill. SARC is an all-party Joint House committee of the Victorian Parliament. In it, the Committee said it would write to the responsible Minister to respond to several aspects of the Report, including the compatibility of the provisions revoking licences with s 20 of the Charter Act, which provides that a person must not be deprived of their property other than in accordance with the law. Exhibit BLL:10 is Alert Digest No 4 of the SARC and attaches a response from the Minister for Transport. It seems that the applicants advance this material as part of their evidence as to the sequence of events after their initial letter to the TSC seeking discovery of documents, the letter dated 22 February 2017, and to explain their subsequent correspondence to the Minister. To this extent, it is in my view admissible.

100 The letter from the Minister for Transport to SARC in Exhibit BLL:10 is also relied upon to show that the Minister disputes the proposition advanced by the applicants that the perpetual licences constituted 'property' for the purposes of the Charter Act.[163] In other words, if this letter is a part of 'proceedings in Parliament' then the applicants rely on it for the purpose of establishing that its content is true. To that extent, it is not admissible.

101 Exhibit BLL:11 to the first Lincoln affidavit is the report of the EI Committee on the CPVI Bill dated 8 June 2017. As a report of a committee of the Victorian Parliament it is a report to the Parliament (the Legislative Council in this case) and thus a part of the proceedings of Parliament. It is not clear that the applicants rely on this report for any purpose other than that it was made. The fact that the committee made the Report is not objectionable; but to rely on the content to establish the truth of a matter in it or to draw inferences from its content will offend the privilege.

102 These exhibits are the transcript of the evidence given to the EI Committee by Ms Lincoln, Mr Haydn Carmichael (also Counsel for the applicants in this application) and others on behalf of the VTF given on 23 May 2017 (BLL:13), Corrs letter to the EI Committee dated 30 May 2017 (BLL:14) and legal submissions made to that committee by the VTF on 31 May 2017 (BLL:15). The transcript of evidence is plainly subject to the privilege and, although the fact that it was made may be proved, the truth of its content cannot be relied upon, nor can it be questioned or inferences drawn from it. The letter from Corrs as solicitors for the VTF falls into much the same category as it is a response to a request from the Committee for further submissions. The legal submission may be subject to the privilege, but nothing turns on that submission so far as I can see. Further it is easily replicated without offending the privilege.

103 Exhibit BLL:22 is an extract from Hansard recording the debate on the CPVI Bill in the Legislative Council on 23 June 2017. This is relied upon by the applicants as evidence that behind the transition assistance, there are economic modelling documents of the kind in Category 1 of the Categories in Annexure A. The fact that there is a reference to transition assistance in the debates in the Council is a fact that does not, it seems to me, offend the privilege. Drawing inferences from it is another matter. It is not admissible for that purpose. In context, however, that is of little moment as there are other and better references that support such an inference.

104 There are nine categories of documents described in Annexure A of the applicants' originating motion. For convenience, that annexure is set out as an annexure to these reasons. The applicants divide the categories for practical purposes into two general groupings:

(a) Group 1: Schedule A paragraphs 1 and 2: documents evidencing the financial or economic modelling or calculations undertaken for the purposes of determining the transition assistance or transitional financial support package administered by the TSC whereby a payment is made to licence holders[164] calculated on the number and types of licences held by a licence holder on 15 August 2016, and which continued to be held until 14 July 2017,[165] and documented evaluation of the value of perpetual licences for the purposes of Centrelink applications; and

(b) Group 2: Schedule A paragraphs 3-9: documents which evidence or relate to the possibly ultra vires exercise of regulatory and statutory power or other unlawful conduct of the TSC. The conduct that is referred to was described in para [4] of the Corrs letter dated 22 February 2017.[166] This conduct has undermined the statutory licensing system which is the central mechanism in the framework of commercial passenger vehicle regulation in Victoria.[167]

105 The conduct described in para [4] of the Corrs letter dated 22 February 2017 is, in summary, a failure of the TSC to act bona fide in accordance with the powers conferred on it and to use those powers for the purpose for which they were conferred in two ways:

(a) prior to 23 August 2016, the date on which the Government announced the reforms, the fee payable for either the purchase or renewal of an annual taxi licence was $23,017.00 plus an administrative fee of $538.40. After that announcement, however, and notwithstanding no change to the prescribed fees, holders of annual licences were instructed to pay only the administrative fee when renewing their licences, and holders of annual licences who renewed their licences before the announcement received by way of 'rebates' the amount paid (less the administrative fee), whilst the applicants for annual licences were required to pay both fees;

(b) the TSC has failed or refused to prosecute drivers of commercial passenger vehicles operating in breach of the regulatory regime.

106 The letter states that the VTF and its members have been adversely affected by this conduct of the TSC and have suffered and continue to suffer loss and damage as a consequence of it.

107 At the outset, the applicants identification of their right to obtain relief was broad and hard to identify. The applicants propounded a reasonable belief in their rights to potentially obtain relief against the TSC broadly in the form of declarations, an order in the nature of mandamus, and damages for breach of statutory duty and for negligence.[168] They pointed to potential causes of action in breach of statutory duty, negligence and misfeasance in public office[169] along with breach of its obligations under the Charter Act.[170] A part of the applicants' difficulty was, they submitted, that they did not have sufficient information to precisely formulate a particular claim for a declaration, and thus sought information that would facilitate a decision and the formulation of the claim or claims.

108 The applicants submitted that r 32.05(a) of the Rules is in permissive terms and that the applicants need only demonstrate a reasonable cause to believe that the applicants have or may have the right to relief. They need not demonstrate that they do have such a right or demonstrate the foundation to such a claim to the Court's final satisfaction.[171] They are not required to precisely formulate either the cause or the precise terms of relief sought.[172] The applicants submitted that on the benevolent construction of r 32.05 supported by the authorities[173] this requirement has been met on the evidence.

109 The applicants further submitted that if the Court is satisfied objectively that there are reasonable grounds for belief that the applicants have a right to obtain a declaration, then the applicants will have discharged the first condition of the rule. That is, an application for declaratory relief pursuant to s 36 of the Supreme Court Act 1986 (Vic) (Supreme Court Act) is both cause of action and remedy in one.[174]

110 The TSC's submitted that the requirements of r 32.05 operate by reference to an identified form of relief.[175] The applicants must describe the relief sought with sufficient precision to enable the Court to determine whether the requirements of the rule have been met.[176] The TSC emphasised, however, that the principle doesn't require the applicants to describe the relief sought with exquisite particularity. But the applicants must identify the relief sought with enough precision to enable the Court to be satisfied of at least the three prerequisites to an order for preliminary discovery. Further, the form of relief that the applicants seek will affect what causes of action might be available to obtain that relief, what time limits may apply in relation to those causes of action, whether the applicants have standing to bring such a claim and what information the applicants might need in order to decide whether to bring a proceeding, among other things.[177]

111 The TSC conceded that there is a dearth of authority on this issue of the need to specify the declarations sought and noted that in most of the authorities the remedy sought was damages. The TSC surmised that it is only where declaratory relief or public law remedies are sought that the issue is brought into sharp focus.[178] To say that the applicants seek declaratory relief, or relief in the nature of the writ of mandamus, without identifying the relevant duty and grounds for that relief, is not sufficient in a preliminary discovery application. It might be, for example, that the applicants have sufficient information to decide whether to commence a proceeding seeking one declaration, but insufficient information to determine whether they want to seek a different declaration. Similarly, where an order in the nature of the writ of mandamus is sought, it might be that the respondent has not failed to perform one type of duty but has failed to perform an entirely different duty. Specification of the relief sought is required in order for the Court to determine whether the requirements of the rule have been met.

112 Ultimately, through two sets of written submissions and considerable oral submissions and argument by the applicants and the TSC, it is possible to be more definite about the rights to obtain relief that the applicants might have. There are six possible declarations of right and claims for damages for breach of statutory duty and a negligent breach of a duty of care. There was also a claim of misfeasance in public office which appears not to have been pressed.

113 In my view, it is clear that the requirements of r 32.05 of the Rules operate by reference to an identified 'right to obtain relief'. Each of the elements that need to be established in order to warrant preliminary discovery work by reference to that right. The TSC referred to the necessity to clearly identify the 'form of relief'. I do not take this to mean 'form' as distinct from 'substance'. It refers to the cause of action and the reasons, or some of the reasons, that make it objectively reasonable for the applicants to believe that they might have the right to obtain relief on the basis of that cause of action. As each right to obtain relief may found a unique basis for the discovery claimed, the parties' submissions are considered under each of these heads.

114 The parties addressed the issue of whether the applicants had standing, whether under the Charter Act or otherwise, to seek several of the proposed declarations.

115 The question of whether the applicants have standing is inextricably linked to the identification of a right to obtain relief against the TSC. It is thus the proper subject of consideration in relation to each identified right to obtain relief. Notwithstanding this obvious consideration, the parties addressed standing in a general way - particularly regarding the VTF because of its representative character. I will address some of the matters that were advanced in relation to standing generally, before connecting them to the rights to obtain relief against the TSC.

116 The applicants submitted that each applicant has a sufficient interest to sustain a claim of right to declaration or other relief against the TSC. The applicants contend that each applicant has a distinct special interest in the documentary subject matter of this application.[179] Redfield's special interest stems from it being a person directly and immediately affected because, by virtue of the two taxi-cab licences it held, it had interests that no member of the ordinary public had.

117 The VTF relies, for its special interest, on the following matters:

(a) one of the purposes of the VTF is to be a representative body of stakeholders in the Victorian taxi industry;

(b) it advocates on behalf of its members;

(c) it has a significant number of members; and

(d) it is recognised by Government as a representative body of taxi industry participants (as evidenced by its inclusion in the Taxi and Hire Car Industry Ministerial Forum (Ministerial Forum) and the Taxi Industry Reform Stakeholder Reference Group (SRG) meetings organised by the Minister for Public Transport (Minister)).[180]

(a) the TSC's concession that the VTF attended at the SRG meetings and the Ministerial Forum;

(b) the Ministers Media Release dated 19 March 2015 announcing the establishment of the Ministerial Forum which acknowledges the VTF's status as one of the key industry players;[181] and

(c) the fact that the VTF is recognised as one of the core members of the SRG.[182]

119 It is also opportune to mention the applicants' response to some matters raised by the TSC. The TSC maintains that the VTF is not the peak body. The applicants submit that whereas being a peak body may evidence special interest, not being a peak body is not decisive against an incorporated association having a special interest such as to sustain a standing to seek declarative or equitable injunctive relief or a public law remedy. Environment East Gippsland Inc was not a peak body, but Osborn J was satisfied in Environment East Gippsland Inc v VicForests[183] that it had a special interest in the Forest Management Plan and enforcement of the statutory framework governing logging in the relevant area.

120 The applicants also said that in its representative capacity, the VTF has a special interest in such general objectives as the TSC's compliance with the statutory objectives of the TSC set out in s 115E of the TI Act, the transport system objectives and decision-making principles, and pursuit of them, and with the adverse impacts experienced by its members arising from the TSC's conduct and decisions.[184] The applicants' 'right' to seek a declaration of the kind not related to the Charter Act, arises pursuant to s 36 of the Supreme Court Act.

121 The applicants concede that in their incorporated capacities, they do not hold human rights, however

person as defined in section 3 Charter Act and the phrase a person, appearing in section 39, are not to be read as excluding or precluding the standing of the Applicants in their different capacities (although not as a right holder) from seeking relief otherwise than because of the Charter on a ground of unlawfulness arising because of the TSC's failure to give proper consideration to relevant property rights of section 20 right holders.[185]

122 It was submitted that following Truth About Motorways v Macquarie Infrastructure Investment Management Ltd (Truth About Motorways),[186] a person in the context of s 38 of the Charter Act and otherwise, is not to be read as limiting standing to a natural person right holder, though a claim for relief in respect of breach of a Charter right can only be made in respect of an individual's right. The applicants submitted that whilst the right holder must be a person, the agitator of the rights of that person can be a corporate person.[187]

123 In any event, if their application is sustained on the other bases submitted, it is not necessary for the applicants to demonstrate on this application, that either applicant has standing to seek relief in respect of Charter Act unlawfulness arising from a breach of obligation owed by the TSC to a right holder.[188]

124 The TSC initially submitted that the VTF may not have standing to seek relief from the TSC, depending on the nature of the relief sought. The fact, the TSC submitted, that an incorporated association takes up a particular cause does not mean that it will automatically have standing in any proceeding relating to that cause.[189] Whether an incorporated association has standing will depend on its particular interests and activities and its connection to the matter in respect of which the proceeding is brought.[190]

125 Later, when it understood the relief claimed more clearly, the TSC submitted that the VTF lacked standing in relation to any of the potential causes of action disclosed by the applicants.[191] In the absence of standing, the TSC rightly submitted, there can be no reasonable cause to believe that the VTF has or may have the right to obtain relief in the Court, as required by r 32.05(a) of the Rules.[192] With respect to damages or other compensation, the TSC submitted that the VTF has not suffered any loss as a result of an act or omission of the TSC.[193]

126 In relation to a declaration or order in the nature of mandamus, the TSC relied on Australian Conservation Foundation Inc v Commonwealth (ACF Case)[194] as authority for the proposition that the applicant must have either a private right or equity at stake, or a 'special interest' in the subject matter of the proceeding. Reference was made to the observations of Gibbs J in the ACF Case that:

[A]n interest for present purposes does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi.[195]

127 As the VTF does not have any private right or equity at stake in any proceeding against the TSC it must establish a 'special interest' in the subject matter. To determine whether VTF has such an interest the Court must make an assessment of the importance of the concern which VTF has with particular subject matter and of the closeness of VTF's relationship to that subject matter.[196]

128 TSC submitted that merely taking up a particular cause, or having objects reflecting an interest in and commitment to particular subject matter, does not mean that an incorporated association will automatically have standing in any proceeding relating to that cause or subject matter.[197]

129 The TSC referred to the following matters that have been held to be relevant in determining whether an incorporated association has standing in relation to particular subject matter:

(a) whether the association is the 'peak' association in relation to that subject matter;

(b) whether (and for how long) the association has been recognised by government as a significant and responsible organisation, for example, by providing financial assistance to the organisation in the form of grants or other funding or inviting the organisation to participate in decision-making processes in relation to the subject matter; and

(c) whether the association has conducted programs or engaged in activities in relation to the subject matter (and if so, what programs and activities).[198]

130 In relation to these matters, the TSC submitted that:

(a) the VTF is not the 'peak' association and that this role was better claimed by the Victorian Taxi Association;[199]

(b) the VTF had provided limited evidence that it has been recognised by government as a significant and responsible organisation and that it received no government funding but relied on donations;[200] and

(c) most of the cases in which incorporated associations have been found to have standing have concerned challenges to administrative decisions affecting the environment and in many instances may have been the only entity with a special interest in the subject matter.[201]

131 In oral submissions, the applicants emphasised the decision of Gaudron, Gummow and Kirby JJ in Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd.[202] As the TSC pointed out, that case did not involve an incorporated association. Rather, the respondents were corporations. The first respondent operated a contributory funeral benefit fund business and the second respondent operated a contributory life insurance business.[203] The respondents had sought injunctive relief to prevent the appellants, which were statutory authorities, from carrying on a competing business without observing particular statutory limitations. The Court found that the respondents had standing to seek that relief on the basis that the primary judge had found it highly probable that, if not restrained, the appellants would cause severe detriment to the business of the respondents.[204] The same cannot be said for the VTF. It is an incorporated association that exists to advocate for particular views. It has no business or other interest that has been or might be directly affected by any act or omission of the TSC.[205]

132 In oral submissions, the applicants also relied on the fact that in Martin v Nalder [206] the applicants were found to have standing to seek an order in the nature of mandamus.[207] The TSC submitted that this case should be distinguished because the applicants in that case were each individual holders of taxi plates, not incorporated associations. The Court found that they had standing because 'their livelihoods and financial interests [were] adversely affected by the activities of UberX' and because 'they [were] directly involved in the taxi industry'.[208]

133 With respect to the potential application of the Charter Act, the TSC submitted that the applicants do not have standing as s 39 of the Charter Act limits who may seek a remedy on the grounds of unlawfulness to 'a person'. It was submitted that there is no warrant for reading the word 'person' in s 39 of the Charter Act as meaning anything other than 'a human being'. To read that word in any other way would fail to give effect to the clear intention of the Parliament, which is manifested most plainly in the definition of the term 'person' in s 3 of the Charter Act.[209] The TSC characterises this as a factual issue: the applicants are not human beings therefore the Charter Act does not apply.

134 The TSC distinguished the decision in Truth About Motorways from the present case on the bases that it concerned a different statutory regime and the word 'person' was not defined in the Trade Practices Act 1974 (Cth), and therefore it was not confined to a natural person.[210]

135 In my view, for the reasons advanced by the TSC, the VTF does not have standing to obtain damages, a declaration of any right related to the holder of a taxi-cab licence, or an order in the nature of mandamus however directed. There is therefore no reasonable cause to believe that the VTF has or may have the right to obtain relief in the Court from the TSC (as required by r 32.05(a) of the Rules).

136 The applicants claim there are reasonable grounds for belief that they have or may have the right to obtain a declaration that a perpetual taxi-cab licence existing as at the date of effective revocation (9 October 2017) and owned by members of the VTF, and by Redfield, is a statutory right of property ('property right declaration').[211]

137 The applicants relied on Federal Commissioner of Taxation v Murry (Murry's Case)[212] and Banks v Transport Regulation Board (Victoria)[213] in support of their submission that perpetual licences have been recognised as granting valuable economic and property rights. There is no real doubt that, in the context of this application, the holders of perpetual taxi-cab licences had a form of property right in the licence. That was not disputed by the TSC in the application.

138 The applicants observed that the legal character of the applicants' statutory rights of property in perpetual taxi-cab licences is clear, however it is submitted that the Minister has repeatedly brought those rights into dispute.[214] A declaration that a perpetual taxi-cab licence was a statutory right of property at the time of its revocation is a matter of significant and special consequence to the VTF, as a representative body of such property owners, and is of direct significance to Redfield. A declaration to that effect would resolve significant controversy.[215]

139 The applicants also submitted that the TSC is a natural contradictor in its capacity as the licensing authority. The declaration would substantively correct 'legal error' and misconception as to the status, characterisation and substance of the statutory right of property. The significance of this matter to the VTF is evident in Corrs' representations made to the Minister by letter dated 5 April 2017[216] in which the VTF sought reconsideration of legislative steps then proposed by the Minister and an opportunity to be heard, and to that end further consultation pending which the progress of the Bill be stayed. As deposed by Ms Lincoln, that request and correspondence was not answered.[217]

140 The applicants relied on the affidavit of Ms Lincoln[218] as evidence that they have made reasonable inquiries, and the affidavits of Ms Mayas[219] and Ms Spanos[220] to support their claim that they do not have sufficient precise information upon which to decide whether to bring an action against the TSC.[221] The material substance of the evidence they each give is that they do not presently have sufficient information to enable them to decide whether to commence a proceeding or proceedings to obtain relief against the TSC, and that they believe that inspection of the documents requested from the TSC will assist them in making that decision. In other words, the evidence did not rise above an assertion.

141 The applicants relied upon Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd[222] to support the proposition that the fact that the applicants for preliminary discovery already have enough evidence to establish a prima facie case against the TSC does not mean that the applicants have sufficient information to enable them to decide whether to commence a proceeding.

142 The TSCs submitted that there was no reasonable cause to believe that the applicants could obtain a declaration of the kind sought in the property right declaration. The TSC cited Ainsworth v Criminal Justice Commission[223] and Gardner v Dairy Industry Authority of NSW[224] to support its contention that the Court would refuse to grant such a declaration because it would not produce any foreseeable consequences for the parties, and that it is not sufficient to demonstrate that the declaration could produce a foreseeable consequence for a non-party.

143 A declaration in the form sought would amount to a statement that a licence created under a now-repealed statutory regime had a particular legal character. The applicants have not identified any practical or legal consequence that would follow from a declaration that such a licence had (or did not have) that character.[225]

144 The TSC submitted that there is no relief that the applicants could seek from the TSC that would depend on whether a taxi-cab licence which existed before 9 October 2017 was a 'statutory right of property'. Furthermore, merely to declare that a taxi-cab licence was a 'statutory right of property', without more, is meaningless. Consequently there is no reasonable cause to believe that the applicants could obtain a property right declaration.

145 In response to the applicants contention that 'a declaration to that effect would resolve significant controversy',[226] and that such a declaration 'would substantively correct legal error and misconception as to the status, characteristics and substance of the statutory right of property',[227] the TSC submitted that the applicants have not explained how resolving the 'controversy' or correcting the alleged 'legal error and misconception' would produce any meaningful consequences for them. The licences were not revoked by the TSC but by Act of Parliament. Under Victorian law, there is no right to compensation in these circumstances, as there might be if the legislation were enacted by the Commonwealth.[228]

146 Even if there was reasonable cause to believe that the applicants could obtain a property right declaration, the TSC claimed that the applicants already have sufficient information to decide whether to commence a proceeding seeking that relief. The applicants have not explained why they believe they have insufficient information to decide whether to seek a property right declaration.

147 In the further alternative, none of the categories of documents sought by the applicants would assist them to make that decision because the categories of documents sought do not relate to whether a taxi-cab licence was or was not a 'statutory right of property' as at 9 October 2017.[229]

148 The property right declaration sought by the applicants is a declaration as to the legal character of the perpetual taxi-cab licences, namely whether they are property rights. It is clear, even at this stage, that even if the VTF has standing to seek such a declaration:

(a) both applicants have shown that there is little doubt that a perpetual taxi-cab licence was a 'statutory right of property'. The respondent does not contest the existence of this right, despite the assertion by the applicants that this was controversial. To the extent that the observations of the Minister in the Second Reading Speech referred to above at para [[[230]](#_Ref5256376 (b) the applicants already have sufficient information to decide whether to commence a proceeding seeking that relief;

(c) the applicants have not explained why they believe they have insufficient information to decide whether to seek a property right declaration;

(d) such a declaration would be of no utility. It could produce no foreseeable consequences for the parties. As the plurality of the High Court said in Ainsworth:[231]

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which '[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise'. However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have 'a real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen' or if 'the Court's declaration will produce no foreseeable consequences for the parties'.

(e) the applicants demonstrate no legal or practical consequences that might flow from the declaration. The Government's transition assistance to holders of taxi-cab licences is, in a sense, a recognition of the loss by those licence holders of what had been a valuable asset. A declaration that those licence holders had an asset of value can do nothing except give rise to some embarrassment for the Victorian Government. But it is not the Government that can be the subject of the supposed proceeding for a declaration. It is the TSC who is the putative defendant to such an application as it is the TSC from whom preliminary discovery is sought, not the Government; and

(f) it is not possible under r 32.05 of the Rules to obtain preliminary discovery from the TSC in order to help the applicants to decide whether to sue the Government. Nor is it a proper justification for a declaration of right against the TSC that it may produce consequences for the applicants against a non-party, the Government.[232]

149 It is immaterial whether perpetual taxi-cab licences are characterised as a 'valuable item of property because it has economic potential' (as the High Court referred to it in the context of a taxation appeal in Murry's Case)[233] where, as here, the right is lost for all time by the operation of an Act of the Victorian Parliament.

150 Further, none of the categories of documents appear to relate in any way to such a declaration of right. None of the categories relate to whether a perpetual or other taxi-cab licence was or was not a 'statutory right of property' as at 9 October 2017. In addition, the applicants do not identify which category of documents that they believe are in the possession of the TSC would assist them in deciding whether to pursue this declaration.

151 For these reasons, I refuse the applicants' application to order the TSC to make discovery of any documents on the basis of a claim to a property right declaration.

152 The applicants claimed there are reasonable grounds for the belief that they have or may have a right to obtain a declaration in respect of TSC's conduct in the exercise of its statutory powers (whether under s 115F(1)(c) of the TI Act or otherwise); alternatively, in its conduct in exercise of any executive power or function at the direction of the Executive Government in implementing or administering the elements of the Government Industry Assistance Package,[234] the TSC is and was at all material times:

(a) duty bound to act in a way that is compatible with human rights (relevantly s 20 of the Charter Act) in accordance with s 1(2)(c) of the Charter Act; and

(b) obliged and duty bound by reason of s 38 of the Charter Act to give proper consideration to whether and how s 20 of the Charter Act property rights of perpetual taxi-cab licence holders were interfered with or adversely impacted or affected by the TSC's conduct or administration and implementation of the Industry Assistance Package ('Charter duties declaration').[235]

153 The applicants submitted that their reasonable belief in their right to a Charter duties declaration is supported by the omission from the TSC's affidavits of any evidence that the TSC was cognisant of or gave consideration to Charter Act obligations in its exercise of power or functions.[236]

154 The applicants pointed to evidence given by the TSC[237] as confirming that the TSC had direct knowledge of the value of perpetual licences at all times prior to the recent revocation of those licences and of the factors which might impact on that value.[238] Exhibit SB:8 to the first Brnovic affidavit contains Taxi and Hire Car Industry Statistics and comprises extracts from the TSC website showing statistics relating to licence activities and compliance 'outcomes' for various months during the period from January 2016 to August 2016. It shows the number of taxi licences and drivers and, amongst other things, the declining average market value of metropolitan taxi licences from January 2016 to August 2016. It was put forward by the TSC to show the public availability of documents relating to the TSC's licencing and compliance functions.

155 The applicants link this proposed declaration with the documents in Categories 1 and 2 of Annexure A, being documents dealing with the evaluation and determination of the amount and extent of the transitional assistance offered to holders of perpetual taxi-cab licences. They rely upon evidence given to the EI Committee of the Legislative Council of the Victorian Parliament in public hearings held on 23 May 2017, at which the TSC Director of Operations gave evidence of the decline in value of perpetual taxi-cab licences and the Secretary of the Department of Transport gave evidence of the effect of 'market forces' on the value of such licences and the variety of factors which went to the Government's decision as to what constituted fair and reasonable value of the transitional assistance to be granted to taxi-cab licence holders.[239]

156 As I have already noted (above at para [97]), the applicants seek to use statements of Mr Richard Bolt, the Secretary of the Department, in the transcript of the public hearing held by the EI Committee of the Legislative Council on 23 May 2017 (Exhibit SB:04) to draw the inference that the TSC has the documents sought in Categor[240] 1 and 2.240 The drawing of inferences from the evidence given is not permitted by parliamentary privilege.

157 The applicants submit that the evidence given to the EI Committee of the Legislative Council, together with evidence given by Ms Lincoln in her second affidavit and the evidence of Mr Brnovic, is sufficient to sustain an inference that

[I]n the ordinary course of its exercise of powers as licensing authority, between 23 August 2016 and 30 November 2016, when the transition assistance package was extended from two licences to four licences but no further, the Respondent created or brought into existence, or was asked to advise upon taxi cab licensing data and information collected in the ordinary administration of its functions such as is revealed in Exhibit SB:08 of the Brnovic Affidavit. Further, it is to be inferred that in respect of such data documented or held by the Respondent, the Respondent undertook calculations or modelling on its own behalf or at the request of the Victorian Government or Department of Economic Development, Jobs, Transport, and Resources (Department) for the purpose of determining and/or advising upon and/or informing Government policy going to the amount of "fair and reasonable" transition assistance and/or the number of licences to which that assistance might be offered and the means by which it was allocated or adjudged payable to holders of perpetual taxi licence holders, in the circumstance of the announced Government intention to revoke perpetual taxi-cab licences.[241]

158 The applicants are not permitted to draw any inference from the evidence given to the EI Committee. However, it is not clear whether the above submitted inference depends on that evidence.

159 The TSC submitted that the applicants' reasonable belief in their ability to obtain the Charter duties declaration was unfounded. This was so, as the Court would refuse to grant such a declaration because it would not produce any foreseeable consequences for the parties. The TSC characterised such a declaration as an intermediate step necessary for an ultimate conclusion of Charter unlawfulness[242] and maintained that neither applicant can seek any relief or remedy from the TSC on the ground of Charter unlawfulness. The TSC reiterated their submissions that both applicants lacked standing to seek such a declaration.

160 In the alternative, even if there were reasonable cause to believe that the applicants could obtain a Charter duties declaration, the applicants already have sufficient information to decide whether to commence a proceeding seeking that relief.[243] The applicants have not explained why they do not have sufficient information to seek a declaration in respect of a matter that is not the subject of any controversy. Further, none of the categories of documents sought by the applicants would assist them to make that decision because those categories do not relate to whether the TSC is a 'public authority' under the Charter Act.[244]

161 The circumstances in which relief or a remedy may be sought on a ground of unlawfulness arising because of the Charter are stated in s 39 of the Charter Act:

(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

(2) This section does not affect any right that a person has, otherwise than because of this Charter, to seek any relief or remedy in respect of an act or decision of a public authority, including a right -

(a) to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and

(b) to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.

(3) A person is not entitled to be awarded any damages because of a breach of this Charter.

(4) Nothing in this section affects any right a person may have to damages apart from the operation of this section.

162 The word 'person' is defined in s 3 of the Charter Act to mean a human being. Thus only a human being may seek the relief or remedy to which they are otherwise entitled on a ground of unlawfulness arising because of the Charter. Moreover, s 6(1) of the Charter Act provides that only persons have human rights, and that all persons have the human rights set out in pt 2 of the Charter Act. The note to s 6(1) provides that corporations do not have human rights. Where the Charter Act refers to legal persons more broadly it uses the word 'entity'. When being more specific, it uses specific names, such names as 'public authority', 'Victoria Police', or 'Council'.[245]

163 Because neither applicant is a human being and assuming that, otherwise than because of the Charter, the applicants may seek relief or remedy in respect of an act or decision of the TSC on the ground that the act or decision was unlawful, neither applicant is entitled to seek a declaration under s 36 of the Supreme Court Act that the TSC was at any particular time:

(a) duty bound to act in a way that is compatible with human rights (relevantly s 20 of the Charter Act) in accordance with s 1(2)(c) of the Charter Act; and

(b) obliged and duty bound by reason of s 38 of the Charter Act to give proper consideration to whether and how s 20 of the Charter Act property rights of perpetual taxi-cab licence holders were interfered with or adversely impacted or affected by the TSC's conduct or administration and implementation of the Industry Assistance Package.

164 Even if it were possible for either applicant to seek declarations of this kind as an intermediate step necessary for an ultimate conclusion of Charter unlawfulness, the applicants have not identified any foreseeable consequences for them in consequence of the making of declarations. There is therefore no reasonable cause to believe that the applicants may, possibly, obtain the declaration sought.

165 It is therefore not necessary to consider the other submissions made by the TSC.

166 The applicants claimed that they may have a right to obtain a declaration that the 'direction' deposed to in para [12] of the second Brnovic affidavit did not obviate, or discharge, the duty and obligation of the TSC to give proper consideration to the property rights referred to above ('proper consideration declaration').[246]

167 Paragraph [12] of the second Brnovic affidavit relevantly said:

The TSC administered transition assistance payments and the rebate policy because it was directed to do so following decisions made by the Government. The TSC was directed to administer transition assistance payments and the rebate policy by the Department (and later TfV) on behalf of the Minister, to give effect to the Government's decisions.[247]

168 The applicants claimed that the Annexure A documents would assist them in their decision-making on whether to pursue this relief.[248]

169 The TSC characterised this claim as involving an obligation on it to comply with what is known as the 'procedural limb' of s 38 of the Charter Act,[249] notwithstanding the direction referred to in para [12] of the second Brnovic affidavit.

170 The TSC maintains that there was no reasonable cause to believe that the applicants could obtain the 'proper consideration declaration' as:

(a) the Court would refuse to grant such a declaration because it would not produce any foreseeable consequence for the parties as the parties lack standing to pursue a declaration of Charter unlawfulness;

(b) in the alternative, the applicants already have sufficient information to decide whether to commence a proceeding seeking that relief; and

(c) in the further alternative, none of the categories of documents sought by the applicants would assist them to make that decision because those categories do not relate to whether the TSC is required to comply with the procedural limb of s 38 of the Charter Act.

171 Many of the matters referred to in my consideration of the claim to a 'property rights declaration' are relevant here. It seems to me that the critical consideration is that the Court would refuse to grant such a declaration because granting it would not produce any foreseeable consequences for the parties.[250] The declaration, which is framed in a way that makes it appear to be a cross-over between a declaration and an application for an order in the nature of the writ certiorari, seems to proceed on the basis that in administering the transition assistance payments the TSC was bound to give proper consideration to the property rights of the holders of perpetual licences. If one assumes that to be correct, and that the TSC was required to 'consider' those rights, what follows from that? That question was never answered by the applicants and I can neither see nor imagine any answer that produces either legal or material consequences for the applicants.

172 At best, the declaration sought is as an intermediate step necessary for an ultimate conclusion of Charter unlawfulness. But, as explained earlier, neither applicant can seek a declaration of Charter unlawfulness. For these reasons, and the additional reasons advanced by the TSC, I will refuse preliminary discovery under this head of claim as the applicants have not established any of the requirements for that discovery.

173 There are reasonable grounds for the belief that the applicants have or may have a right to obtain a declaration that payment by the TSC of transition assistance is not a 'grant' lawfully made within power by the TSC or in pursuance of its statutory object of regulation (grant declaration).[251]

174 In support of their claim that the applicants may have grounds for review on the basis of lack of statutory foundation for the payment of transition assistance the applicants pointed to the TSC's reliance on transition assistance as being a subsidy falling within s 115F(1)(c) of the TI Act and stated that this basis was abandoned by the TSC. The applicants also said that the TSC relies on the 'grant' function as a source of power to make transition payments but that this is wholly unsupported by evidence.[252]

(a) there is reasonable basis for belief that they have or may have a right to obtain a declaration that the payments by the TSC of transition assistance were not 'grants' within the meaning of s 115F(1)(c) of the TI Act and were not lawfully made pursuant to its primary statutory object of regulation pursuant to s 115E of the TI Act;[253]

(b) there is no legislation that substantiates the claim to such a source of power as between the Executive Government and the TSC and there is no legislative foundation which substantiates, guides or regulates in any way cognisable with rule of law principles, a grant-making process in the TSC having such significance to the thousands of affected licence holders and involving a wholesale and radical change of regulatory structure;[254]

(c) there is in fact no evidence before the Court that the transition assistance payments were a 'grant';[255]

(d) the transition assistance or rebate of fees must engage a lawful object falling within s 115E of the TI Act to be within power. There is no evidence which would demonstrate that legal foundation or any source of power to support the rebate of public funds by the TSC to licence holders.[256]

[A] 'grant', whether of transition assistance or of the rebated fees, must, if it is to be within power, engage a lawful object falling within section 115E of the TI Act. There is no evidence of facts which would demonstrate that legal foundation or relationship. There is no evidence of any source of power to support the rebate of public funds by the Respondent to licence holders.[257]

the function of a public authority to administer the grants made or subsidy schemes established is precisely the kind of grant or scheme given content and substance by Charter Act obligations, whether in the evolution/development of the idea of such a grant or scheme or in its administration and implementation as conceived. It is submitted that section 38 of the Charter Act effects a condition on the section 115G power to administer any such grant.[258]

177 The applicants pointed to the two Brnovic affidavits as deposing that the industry assistance package was not provided for in legislation and as asserting that the TSC is responsible for the delivery of payments in accordance with government policy.[259] However the applicants submitted that rather than having a limited role in relation to the administration of transitional assistance, the TSC's role was instrumental, functional and a substantive exercise of power.

178 The TSC pointed to the Appropriation Acts to show that the moneys used for the payment of transitional assistance were lawfully appropriated from the consolidated fund.[260] The TSC relied upon ss 115G and 115F of the TI Act as the basis for the payment by the TSC to the licence holders and submitted that such payments were grants within s 115F(1)(c).[261]

179 In relation the grant declaration, the TSC contended that:

(a) the applicants already have sufficient information to decide whether to commence a proceeding seeking a declaration of that kind. The applicants already have the evidence of the payments being made; whether those payments bear a particular legal character is a matter for legal submission, not further evidence;[262]

(b) even if the applicants do not already have sufficient information to decide whether to commence a proceeding seeking that relief, none of the categories of documents sought by the applicants would assist them to decide whether to commence a proceeding seeking that relief. The documents sought in Categories 1 and 2 relate to the calculation of the quantum of transition assistance, not the legal character of the payments themselves;[263]

(c) whether the payments of transition assistance are 'grants made ... in relation to the commercial passenger vehicle industry' within the meaning of s 115F(1)(c) of the TI Act is a question of statutory interpretation. The only documents that the applicants seek from the TSC that relate to the payment of transition assistance are those in Categories 1 and 2. However, those documents relate to the calculation of the quantum of transition assistance, not the legal character of the payments themselves;[264] and

(d) the applicants do not explain how the documents in Categories 1 and 2 would assist them to decide whether to commence a proceeding seeking a declaration that the payments of transition assistance were not 'grants' within the meaning of s 115F(1)(c) of the TI Act or the payments of transition assistance were not consistent with the objects set out in s 115E of the TI Act.

180 It seems to me that if this particular declaration was made it would have consequences for the TSC and Redfield. The consequences may be that all payments of transition assistance were not lawfully made by the TSC or lawfully received by Redfield and the thousands of other perpetual licence holders who received transitional payments for their revoked licences. Any consequences for the VTF would be entirely vicarious, as its members receipts of payments might be affected. But neither party addressed any consequences beyond the legal conclusion that if the declaration was made, the actions of the TSC in making the payments, conceived of and funded by the Victorian Government, would be unlawful.

181 Such a declaration is akin to a declaration 'in the air', full of sound and fury, but signifying nothing, so far as the applicants explained. The applicants did not explain what end would be served by such a declaration. It is not enough, in my opinion, to propound a declaration of unlawfulness that takes the applicants nowhere, assuming the VTF has standing to seek it which, for the reasons explained earlier I consider it does not. The VTF received nothing itself under the transitional assistance 'grants', if that is what they were. It has no 'real' interest in the declaration.[265]

182 In any event, I agree with the submissions of the TSC that whether the payments of transition assistance are grants made in relation to the commercial passenger vehicle industry within the meaning of s 115F(1)(c) of the TI Act is a question of statutory interpretation. The only documents that the applicants seek from the TSC that relate to the payment of transition assistance are those in Categories 1 and 2. These documents relate, however, to the calculation of the quantum of transition assistance, not the legal character of the payments themselves.

183 Moreover, the applicants have not explained how the documents in Categories 1 and 2 would assist them to decide whether to commence a proceeding seeking a declaration of unlawfulness of the kind sought.

184 For these reasons, the applicants have not satisfied the requirements for preliminary discovery under this head of claim.

185 The applicants claimed that they may have a right to obtain a declaration that, in the period between 15 December 2015 and the passage and assent of the CPVI Act, the conduct of the TSC in its administration of the transition assistance package, in rebating paid licence fees and not collecting annual licence fees, or in not effecting compliance with and discharge of the obligation to pay an annual licence fee, was ultra vires and otherwise was conduct in error and not in accordance with law or was not actuated by relevant considerations or was actuated by improper purposes (administration declaration).[266]

186 As explained briefly earlier ([26]-[27]), in its capacity as the licensing authority, the TSC receives and administers applications for commercial passenger vehicle licences and the collection of statutory fees in respect of licenses. The TSC is empowered to de[267]mine the fees payable267 which take effect upon publication in the Government Gazette or upon any later date specified in a notice accompanying the publication of the fees in[268]e Government Gazette.268

187 The obligation to pay an annual licence fee to the TSC arises under s 147A(1) of the TCM Act, which provides that the holder of a commercial passenger vehicle licence must pay the appropriate annual licence fee determined under s 147B in respect of every commercial passenger vehicle for which the holder has a licence. The relevant fees for the periods to which Category 3 of the Annexure A documents refers are set out in a number of Gazettes.[269] They remained unrevoked during the relevant period.

The Government decided to relieve new taxi-cab licence holders of their obligation to pay annual licence fees under s 147A(2B) of the TCM Act. The statutory obligations on licence holders to pay their relevant licence fee remained, but the effect of the rebate policy was that the TSC would not collect or pursue the applicable licence fee during the period of transition. The TSC would also make payments to licence holders who have already paid the licence fee, in the amount of the licence fee already paid ...[270]

189 There were thus two elements to the rebate policy - first, the non-collection of unpaid licence fees and second, the repayment of licence fees that had been paid.

190 The applicants asserted that the TSC misconstrued a statutory discretion to suspend or not suspend or cancel a commercial passenger vehicle licence if the holder fails to pay the annual fee by the due date. The TSC has construed the relevant section of the TCM Act as investing a wider discretion in the TSC to ignore and controvert and not facilitate compliance in a lawful way so as to 'affect discharge by the licence holder of statutory obligations to pay the gazetted fee by date due'.[271] However s 147A(3) of the TCM Act is not so wide. It is in fact limited to considerations relevant to and not extraneous to, the exercise of the regulatory power to suspend or not suspend or cancel a licence for conduct ranging from trivial or inadvertent non-compliance to deliberate avoidance of fees.[272]

191 The applicants submitted that a discretion whether to take action for a failure to pay any fee or instalment[273] by the due date does not imply a discretion on the TSC to charge or not charge annual licence fees.[274] The fee to be paid annually is determined entirely independently and has its authority external to the TSC, inter alia, as published in the Gazette.[275]

The interpretation of section 143A of the TCM Act contended for by the TSC, is unsupported by the text of that section. The statutory obligation imposed on the licence holder to pay an annual fee is attended and supported in its discharge by an implied and common sense correlative statutory duty sourced in section 115(1)(a) and (d) of the TI Act upon the Respondent to collect the tendered fee in discharge of the licence holder's annual obligation.[276]

192 The applicants submitted that the repayment of fees already paid by the TSC is similarly beyond power and that the TSC has failed to provide any evidence supporting its claims of legality.[277]

193 The applicants submitted that the TSC's failure to collect licence fees and the rebate of fees supported a reasonable basis for belief that such conduct of the TSC was the pervasive fact and involved a decision reached at an unascertained point in time to not apply applicable commercial passenger vehicle law.[278]

194 The applicants contended that the TSC failed entirely to depose to a lawful source of power other than the grant function in s 115F(1)(c), read with s 115G of the TI Act, to reimburse a statutorily mandated current fee, paid in discharge of a statutory obligation and a condition of lawful operation of a licence. The TSC's reliance upon and claim for legality, based upon these sections, is unsupported by any relevant evidence. Further, such conduct is wholly inconsistent with the performance and discharge of s 115F(d) of the TI Act, which requires the TSC to promote and monitor compliance with any relevant legislation, read with subparagraph (a) of that section.[279]

195 The TSC submitted that the Court would refuse to grant the administration declaration sought because such a declaration would have no utility, in particular as:[280]

(a) the applicants do not seek to have the TSC recoup any of the amounts that were paid to former holders of taxi-cab licences, either as transition assistance or as refunds of annual licence fees;

(b) nor do the applicants seek an order in the nature of mandamus requiring the TSC to take any steps in relation to former holders of taxi-cab licences who did not pay annual licence fees after 23 August 2017; and

(c) the TSC has now made payments of transition assistance and refunds of annual licence fees. There is no evidence that it will make any similar payments in future. In this regard, on 5 October 2017, the Chief Executive Officer of the TSC published a determination of the TSC in the Victorian Government Gazette (No S 336) which, among other things, provided that, with effect from 9 October 2017, the annual licence fee for hire car licences and taxi-cab licences would be $52.90.

196 In these circumstances, a declaration in the form set out in para [185] above, if made, would amount only to an acknowledgement of past invalidity of acts of the TSC, with no consequences for any acts or practices in which the TSC is currently engaged, and with no practical or legal effect for the[281]plicants.281 Such a declaration would have no utility, and therefore would not be granted. It has been said that it will be a rare case where a 'bare declaration, not declaratory of any present right, and amounting only to an acknowledgment of past infringement' will b[282]ustified.282

197 Similarly with the previous declarations sought, the TSC submitted that the applicants already have sufficient information to decide whether to commence a proceeding seeking that relief.[283]

(a) even if the applicants do not already have sufficient information to decide whether to commence a proceeding seeking that relief, none of the documents in Categories 1, 2, 4, 5, 8 or 9 would assist the applicants to make that decision. None of those categories relates to the TSC's administration of payments of transition assistance or its administration of licence fees. Further, Categories 6 and 7 are very broadly expressed, and are likely to include many documents that do not relate to the TSC's administration of payments of transition assistance or its administration of licence fees;[284] and

(b) it is well established that the measure of preliminary discovery to be ordered is no more than that which is necessary to overcome the insufficiency of information already possessed by the applicants, after the making of all reasonable inquiries, to enable a decision to be made whether to commence a proceeding.[285]

199 Accordingly, if the Court rejects the TSC's submission that the application for preliminary discovery should be dismissed, any order for preliminary discovery based on the administration declaration should be drafted narrowly to reflect the information already possessed by the applicants.[286]

200 Whether there is reasonable cause to believe that the applicant has or may have the right to obtain the administration declaration depends in the first place on whether it has any utility. In my view, for the reasons expressed in the submissions of the TSC, it has not. There is in my opinion no possibility that the Court would grant the declaration in the circumstances set out above in the TSC's submissions. The TSC has completed the payments of all transition assistance and refunds of annual licence fees. The applicants do not seek any relief beyond a bare declaration. There is no suggestion that the TSC would be required to recoup any of the amounts rebated or paid in respect of annual licence fees. The present fees, the subject of Gazettal, show that there can be no assistance by way of rebate or refund of fees in future.

201 In those circumstances the declaration is of no possible utility beyond seeking to embarrass the TSC if it turns out that it acted beyond its statutory powers. In Ozmanian,[287] Kiefel J observed that it will be a rare case where a 'bare declaration, not declaratory of any present right, and amounting only to an acknowledgment of past infringement' will be justified. This is not such a rare case.

202 In any event, the issue is primarily one of law. The information already available to the applicants, both in the public domain and as referred to in the affidavits in support of the application, and revealed in the Brnovic affidavits filed by the TSC, show the amounts of expenditure and the method of authorisation of the expenditure relevant to the declaration.[288] I fail to see what further information is needed for the applicants, assuming the VTF has standing, to commence proceedings for the administration declaration.

203 For these reasons I conclude that the applicants do not establish the requirement for the preliminary discovery they seek under this head of claim.

204 The applicants claimed that there are reasonable grounds for the belief that they have or may have a right to obtain a declaration that the exercise of power by the TSC involving monitoring, investigation and enforcement of commercial passenger vehicle law was vitiated by impermissible and irrelevant considerations and otherwise by improper purposes, in particular, whether by decision or by conduct or by complicit agreement with ride-share operators, to facilitate their continuing operations in an unlicensed and unaccredited capacity pending passage of reform laws which would 'gently' place them within a newly constructed regulatory fold (vitiating factors declaration).[289]

205 The applicants submitted that it is a premise of the exercise of statutory power that powers are to be exercised bona fide and in good faith. They refer to the powers of enforcement of the TSC (referred to above at para [28]) and to the TSC's Monitoring, Compliance and Enforcement Policy (above at paras [29]-[35]).

206 The applicants refer to the August Announcement (referred to above at para [40]) and the media release of the Honourable Jacinta Allen MP, Minister for Public Transport, dated 2[290]une 2017,290 referring to the passage of the CPVI Bill through the Legislative Council where it was stated in relation to the trip levy:

The per trip levy replaces annual licence costs of up to $23,000, cutting costs for operators, increasing competition and encouraging new entrants to the market. This will drive down fares for passengers, and improve the quality of passengers.

207 They then contend that it is inescapable that the TSC was not, in the period between the August Announcement and the Minister's media statement, enforcing the s 158 prohibition contained in the TCM Act against unlicensed commercial passenger vehicle operations.

208 The applicants also rely on the evidence of Mr Brnovic that he was a member of the Ride Share Implementation Steering Committee as at 23 August 2016 (and therefore probably from an earlier date). This, it is contended, shows a clear conflict of interest with duty which impacts Mr Brnovic and the TSC. The conflict is either apparent to Mr Brnovic and admitted or is unanswered. In this circumstance, the applicants submitted that there is a fundamental question as to whether the TSC has exercised or failed to lawfully exercise power by reason of improper purposes of a kind that evidences bad faith.[291]

209 The TSC contended that there is no reasonable cause to believe that the applicants could obtain a declaration of that kind. They maintain that while it has the power to bring a proceeding for an offence against the TCM Act,[292] it has no duty to take particular compliance or enforcement action against any particular individual.[293] Rather, the TSC has a discretion.

210 The TSC referred to s 115F(1) of the TI Act, under which it is a function of the TSC to promote and monitor compliance with any relevant legislation and to monitor, investigate and prosecute breaches of any relevant legislation. The TSC has a range of powers that it can use in exercising those functions, ranging from publishing guidance material, to conducting audits and inspections, to suspending or cancelling licences, or bringing prosecutions for offences under the TCM Act.

211 In performing the functions referred to above, and determining which of its powers to exercise, the TSC is guided by its Monitoring, Compliance and Enforcement Policy 2015 (referred to above at para [34]). The Policy states that the TSC has adopted a risk-based model in which the targeting of enforcement and responses to incidents changes depending on the risk. In performing its functions, the TSC applies a balanced combination of positive motivators and deterrents in enforcing commercial passenger vehicle legislation. The TSC prioritises its compliance and enforcement efforts towards the biggest risk to the community and to those people and businesses that are less likel[294]o comply.294

212 It is well established that, for a variety of public policy reasons, prosecuting bodies are not subject to judicial review of the exercise of their prosecutorial discretions.[295] Nor is there any authority for the proposition that a prosecuting body may owe a duty of care to bring a prosecution in a particular case.[296]

213 The TSC contends that there is no evidence that there was an agreement between the TSC and ride-share operators to facilitate their continuing operations in an unlicensed and unaccredited capacity. Consequently, it was asserted that there was no basis for the Court to make the declaration sought.[297]

214 In the alternative, the applicants already have sufficient information to decide whether to commence a proceeding seeking that relief. Information about the way in which the TSC monitored compliance with the commercial passenger vehicle laws is publicly available.

215 In the further alternative, even if the applicants do not already have sufficient information to decide whether to commence a proceeding seeking that relief, none of the documents in Categories 1, 2, 3, 8 or 9 would assist them to make that decision. None of those categories relates to the TSC's monitoring and compliance activities. Further, Categories 6 and 7 are very broadly expressed, and are likely to include many documents that do not relate to the TSC's monitoring and compliance activities.[298]

216 If the Court rejects the TSC's submission that the application for preliminary discovery should be dismissed, any order for preliminary discovery based on the vitiating factors declaration should be drafted narrowly to reflect the principle set out in para [198(b)[299]] above.299

217 The power to prosecute for contraventions of the TCM Act is as follows:

A proceeding for an offence against this Act or the regulations may only be brought by a police officer, a protective services officer who, at the time of the alleged offence, was on duty at a designated place or a person authorised by the Secretary, the licensing authority or the Roads Corporation either generally or in a particular case.[300]

218 It is undoubted that this power, like most prosecution powers, is discretionary. Decisions whether or not to prosecute for an offence are 'insusceptible of judicial review.'[301] The integrity of the judicial process - particularly its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and as to what.[302] It follows that insofar as the applicants seek to declare that decisions not to prosecute a driver or owner of a 'ride-share vehicle' for not being licenced as a commercial passenger vehicle, then it cannot be done. There is no reasonable cause to believe that either applicant may have the right to obtain relief of that kind.

219 The TSC has a range of powers that it can use in exercising its functions of 'monitoring, compliance and enforcement' ranging from publishing guidance material, to conducting audits and inspections, to suspending or cancelling licences, or bringing prosecutions for offences under the TCM Act. The account of the background facts set out above shows activity in this area. However, it may be that the TSC was guided in the exercise of these powers by some of the documents within Categories 4 to 8 in Annexure A to these reasons and it may be that these might assist Redfield to decide whether to commence proceedings for a declaration in the nature of the vitiating factors declaration. However, for the reasons given above, I consider that the VTF does not have standing to seek this kind of declaration. Unlike Redfield, it has no economic interest in the enforcement of the licencing law.

220 Apart from a challenge to the exercise of the discretion whether or not to prosecute, it is hard to see what a declaration of the kind referred to would seek to achieve, unless it were linked with a claim against the TSC for breach of a common law duty of care, as to which see below. The identification of the content of the declaration that might be sought is presently unclear and, apart from linking the declaration to a claim for damage by Redfield for breach of a common law duty of care, it is difficult to see what relief could follow.

221 The proposed declarations which the applicants might have a right to obtain are:

[W]hether by decision or by conduct or by complicit agreement with ride share operators the TSC facilitated their continuing operations in an unlicensed and unaccredited capacity pending passage of reform laws.

222 There is no evidence that there was any agreement, express or implied, between the TSC and ride-share operators to facilitate their continuing operations in an unlicensed and unaccredited capacity. The jurisdiction to order preliminary discovery is, however, enlivened by a lack of evidence, which is the cause of the application. It is unnecessary to delve further into the precise form of a declaration under this head of claim.

223 For these reasons, in my view, Redfield is entitled to preliminary discovery under this head of claim in respect of documents within Categories 4 to 8 of Annexure A to these reasons. Further submissions will be needed in order to identify with greater precision the documents within those categories that Redfield lacks and which it is reasonable to conclude are in the possession of the TSC.

224 The applicants claim a potential right to relief in the form of damages for breach of statutory duty and/or negligence.

225 The applicants relied on the affidavit evidence along with statements from Hansard to support their contention that the failure to maintain gazetted statutory licence fees and the TSC's conduct in performance of the enforcement policy had economic consequences. The applicants said the vulnerability of lawfully licensed commercial passenger vehicle operations to unlicensed commercial passenger (ride-share) operations was well known to the Government, to the Minister, and to the TSC. This broad statement is intended, I understand, to reference the following failure to perform particular statutory duties;

(a) the TSC provided a rebate of annual licence fees for taxi-cab licences and did not require outstanding fees to be paid; and

(b) the TSC did not take compliance and enforcement action against ride-sharing operators and therefore allowed ride-sharing to proliferate.

226 By failing to perform these duties, the TSC devalued taxi licences and caused commercial arrangements between licence holders and taxi operators to break down.

227 The applicants dispute the TSC's contention that it is not duty bound to act by reason of the language of ss 115E, 115F and 115G of the TI Act, or by the provisions providing for its administration of licence fees (such as s 147A of the TCM Act) or the exercise of its investigative and enforcement powers.

228 The applicants contend that the TSC treated its Monitoring, Compliance and Enforcement Policy as an exclusive statement of its duties, functions and powers and of the policy considerations and judgments required of the TSC as regulator, investigator and prosecutor (and conclusive as to each of these functions). In doing so they say the TSC may have impermissibly fettered its duty to enforce the prohibition against unlicensed commercial passenger vehicle drivers and operators. The applicants rely on this to found their reasonable cause to believe that the applicants have or may have other rights to obtain relief in respect of the negligent performance or negligent omission to perform statutory duties.

229 The applicants submit that there is a clear conflict of interest which impacts Mr Brnovic and the TSC - Mr Brnovic's admitted membership of the Ride Share Implementation Steering Committee as at, at least, 23 August 2016. Mr Brnovic was conducting himself in the period to which the categories of documents refer in a role that effectively was facilitating the entry of then unlicensed, unlawful ride-share operations into a yet to be legislated lawful scheme. At the same time he had duties to enforce the licensing laws. The applicants submitted that at the intersection between statutory and public powers and private rights lies a question of the consequence for private rights of bad faith, improper purpose or other administrative law illegality in the discharge of public statutory power. In this circumstance, there arises the question as to whether the TSC has exercised or failed to lawfully exercise power by reason of improper purposes of a kind that evidence bad faith.[303]

230 The applicants also submit that the conduct of the TSC, including the failure to collect licence fees and to rebate fees, appears to constitute a reckless disregard of the duty to exercise statutory power for lawful and not improper or extraneous purposes, and was so exercised with knowledge of and advertent to the vulnerability of perpetual taxi-cab businesses to economic loss flowing from failure to administer the licence fee and related laws, and failure to enforce the law against unlicensed ride-share operations.[304]

231 The applicants submit that the uncontradicted evidence is that deposed to in the Mayas affidavit, and that following announcement of the rebate policy and by reason of the non-collection of annual licence fees by the TSC, perpetual taxi licence holders who had assigned their licences suffered a causally-related loss of income from their assignees.[305]

232 The applicants also rely on material subject to parliamentary privilege[306] to evidence the knowledge of the Government, the Minister, and the TSC of the vulnerability of lawfully licensed commercial passenger vehicle operations to unlicensed commercial passenger (ride-share) operations. But that is not the only evidence of the vulnerability of the holders of perpetual taxi licences. The evidence in the Mayas affidavit referred to above shows that the Redfield licences had been assigned and, after the Government announced the reforms in August 2016, one of the assignees attempted to terminate the assignment agreement in September 2016. The gazetted annual licence fee at the time was $23,013. After the announcement the TSC only collected the administrative fee of $538.40. The availability of licences at very low cost seriously undermined the previous value of the licences and the TSC must have known this to have been the case.

233 The applicants say that they do not have sufficient information to know whether the TSC recognised that the payment of annual licence fees by current annual taxi-cab licence holders imposed a fee and cost burden on current annual licence holders which was not shared by ride-share competitors of licensed commercial passenger vehicle drivers, operators and owners. There is insufficient information to know whether the TSC chose deliberately to alleviate that burden or otherwise create a level playing field in a way intended or foreseen, or not, as to the consequences deposed.[307]

(a) the Charter Act imposes statutory obligations upon the TSC as a public authority to act in a way that is compatible with human rights and to comply with the procedural and substantive obligations of ss 7 and 38 of the Charter Act.[308] Further, they submit that the TSC acknowledges this obligation, as the annual report for the TSC for 2015-16 notes on page 10 that '[o]ur processes uphold the basic rights, freedoms and responsibilities of all people in Victoria as set out in the [Charter Act]';[309]

(b) as in Crimmins[310] the statutory duties, powers and functions imposed on the TSC are entirely consonant with the existence of a duty to take reasonable positive steps in the exercise of licensing administration, enforcement and investigation duties and powers, to minimise and prevent foreseeable economic harm to licensed commercial passenger vehicle operations;[311]

(c) contrary to the TSC's submission that there is nothing in the text of the TI Act or the TCM Act to indicate that the TSC's powers were conferred to protect the economic interests of holders of taxi-cab licences:[312]

[t]here is evidence of the indicia of a relationship giving rise to a duty in the Respondent as regulator to take reasonable care to avoid (negligently) causing foreseeable economic loss to licence holders by reason of the negligent performance and discharge of statutory duty and/or functions; and/or by reason of the negligent omission to exercise particular statutory powers, duties and/or functions, having the consequence that licensed commercial passenger vehicle licence owners and operators of such vehicles, will foreseeably cause loss and avoidable damage.[313]

235 There is nothing, the applicants contend, to indicate that the TSC is not subject to a common law duty of a kind in respect of which Redfield may have a right to relief and the VTF may have a right to act in a representative capacity to vindicate.[314]

236 There is a limitation provision in s 90 of the TCM Act[315] (to which the TSC referred) which provides, so far as presently relevant:

(1) No compensation shall be payable to any person in respect of or as a consequence of any decision or determination made pursuant to this Part -

(a) to grant, issue, renew, reject, cancel, suspend or revoke any licence, certificate, permit, consent, assignment or other authority under this Part;

(b) to add, alter or vary any condition or term of or attached to any licence, certificate, permit, consent, assignment or other authority under this Part; or

(c) to alter the route or area in respect of which any licence has been granted under this Part.

(2) Without limiting subsection (1), no compensation is payable to any person in respect of, or as a consequence of, a decision of the licensing authority under Division 4 -

(a) to approve or refuse an application for accreditation; or

(b) to impose a condition, restriction or other limitation on an accreditation; or

(c) to vary or revoke a condition, restriction or other limitation on an accreditation; or

(d) to take disciplinary action; or

(e) to serve an improvement notice.

237 This provision expresses a limited protection in respect of the confined exercise of powers to which that section refers. The TSC acts in right of the State of Victoria in the exercise of pt VI of the TCM Act (which Part binds the Crown by force of s 88 of the TCM Act). Section 90 presupposes duties in respect of which it effects a limited exemption or exception.

238 The applicants claim they do not have sufficient precise information upon which to conclude a view as to the exercise and non-exercise or negligent exercise by act or omission of the TSC of its extensive monitoring, compliance and enforcement duties and policy to enable it presently to decide whether to bring an action against the TSC. The Category 3-9 documents are directed to this deficiency.

239 The applicants alleged that the TSC has conflated breach of statutory duty and negligent performance or discharge of statutory duty and negligence by omission to act.[316]

240 The applicants submitted that a statutory body such as the TSC may come under a common law duty of care, both in relation to the exercise and failure to exercise its powers or functions. They cited Crimmins[317] in support of this proposition and noted that the statutory duties, powers and functions imposed on the TSC are entirely consonant with the existence of a duty to take reasonable, positive steps in the exercise of licensing, administration, enforcement and investigation duties and powers, and to minimise or prevent foreseeable economic harm to licensed commercial passenger vehicle operations.

241 The applicants acknowledged that liability will arise in negligence in relation to the failure to exercise a power or function only if there is, in the circumstances, a duty to act.[318]

242 The applicants referred the Court to the following statement of McHugh J in Crimmins:[319]

In my opinion, therefore, in a novel case where a plaintiff alleges that a statutory authority owed him or her a common law duty of care and breached that duty by failing to exercise a statutory power, the issue of duty should be determined by the following questions:

1. Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.
2. By reason of the defendant's statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.
3. Was the plaintiff or were the plaintiff 's interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.
4. Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.
5. Would such a duty impose liability with respect to the defendant's exercise of ''core policy-making'' or ''quasi-legislative'' functions? If yes, then there is no duty.
6. Are there any other supervening reasons in policy to deny the existence of a duty of care (eg, the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty.

243 The applicants submitted that matters of the kind referred to by McHugh J were evidenced and established by the facts in the current case. Consequently there is evidence of the indicia of a relationship giving rise to a duty in the TSC as regulator to take reasonable care to avoid (negligently) causing foreseeable economic loss to licence holders by reason of the negligent performance and discharge of a statutory duty or functions; or by reason of the negligent omission to exercise particular statutory powers, duties or functions, having the consequence that licensed commercial passenger vehicle owners and operators of such vehicles will foreseeably suffer loss and avoidable damage.[320]

244 The applicants pointed to the following as relevant indicia:

(a) the licensing system historically and factually constituted an entire regulatory system and scheme;

(b) the commercial passenger vehicle licence market was brought into existence by Government law, the centrepiece of which was the former licensing structure;

(c) the Government administered the commercial passenger vehicle licensing structure for profit by sale of the licences;

(d) the TSC's overarching control and statutory responsibility for the administration and enforcement of the commercial passenger vehicle laws and specifically the licencing scheme;

(e) the statutory structure and the provisions concerning the administration of applications, assignments, transfers, all contained obligations to pay fees;[321] and

(f) the vulnerability of holders of licences in the closed scheme.[322]

245 The TSC submitted, and the applicants conceded,[323] that the VTF could not conceivably be entitled to an award of damages as the VTF has not suffered any loss.[324] The TSC also submitted that Redfield has a causation problem because any loss they suffered is as a result of Government action, the legislation of Parliament and market forces, and not because of any action or inaction of the TSC.

246 In relation to a claim of breach of statutory duty, the TSC submitted that:

(a) the TSC has no duty to charge annual licence fees to holders of taxi-cab licences, instead it has a discretion to take particular action if an annual licence fee is not paid.[325] Nor does the TSC have a duty to take particular compliance or enforcement action against any particular individual.[326] Rather, the relevant statutory provisions confer a discretion on the TSC to take enforcement action;[327]

(b) for a variety of public policy reasons, prosecuting bodies are not subject to judicial review of the exercise of their prosecutorial discretions.[328] There is also no authority for the proposition that a prosecuting body may owe a duty of care to bring a prosecution in a particular case;[329]

(c) even if the applicants could establish that there was a duty, they would fail to find any relevant provisions in either the TI Act or TCM Act to support the contention that either of those Acts was intended to confer a cause of action in tort if a duty created by that provision was not complied with by the TSC;[330] and

(d) further, even if a duty and cause of action in tort were established by the applicants, there is no basis in either the TI Act or the TCM Act to say that Redfield was within the class of persons whom those Acts were intended to protect.[331]

247 In relation to a possible claim of negligence at common law, the TSC submits that there is no basis to suppose that it owed a duty of care either to the VTF or to any particular holder of a taxi-cab licence to exercise its powers and perform its functions in a way that would not reduce the value of existing taxi-cab licences.[332] Further, the imposition of liability on a statutory authority for pure economic loss in these circumstances would be contrary to existing authority.[333]

248 Similarly, the TSC asserts that there is no basis for the propositions that the TSC was obliged to protect taxi-cab licence holders against a decline in the value of their licences, or that the TCM Act or TI Act were intended to provide a ground of civil liability for holders of taxi-cab licences whose licences had declined in value.[334] On the contrary, s 90 of the TCM Act suggests otherwise as it provides that no compensation is to be payable in respect of various decisions made under the TCM Act.[335]

249 The parties agreed that a public authority may by its conduct place itself in such a position that it attracts a duty of care which calls for the exercise of a power.[336] However the TSC submitted that there is no evidence that the TSC has engaged in any conduct in relation to Redfield that might give rise to a duty of care owed to Redfield.[337] The TSC cited Sutherland Shire Council v Heyman (Sutherland)[338] in support of their observation that it is not aware of any Australian authority in which a court has held that a public authority owed a person a duty to exercise its functions and powers so as to protect the person from pure economic loss unconnected with any damage to property.[339] The TSC submitted that recognition of such a duty would be contrary to public policy, as it would unreasonably fetter statutory authorities in the performance of their functions and duties. Further, there was no evidence of any reliance by Redfield on particular conduct of the TSC as required by the authorities.[340]

250 Consistent with its argument that the TSC did not have a duty to exercise statutory powers under ss 147A(3) and 229(1) of the TCM Act but only a discretion to take particular compliance or enforcement action,[341] the TSC submitted that

[g]enerally speaking, a public authority which has no duty or obligation to exercise a statutory power will not owe any person a duty of care to exercise that power.[342]

251 To establish a claim in misfeasance in public office the TSC submitted that the applicants needed to establish that the TSC acted in bad faith.[343] The TSC submitted that there is no evidence of bad faith, an intention to cause harm, or knowledge that their actions were beyond power on behalf of the TSC; nor is there any reason to believe that there may be documents in the possession of the TSC which show that the TSC, or any individual within the TSC, acted in such a manner.[344] Further, the applicants have failed to establish that the TSC had a statutory duty to take any particular relevant act and, without such a duty to exercise those powers, there can be no cause of action for misfeasance in public office in relation to an omission to exercise those powers.[345]

252 The TSC submitted that even if other elements of the cause of action were established the applicants would fail on the element of loss, as required to establish a claim in each of negligence, breach of statutory duty and misfeasance in public office. The TSC submitted that the VTF did not suffer any loss[346] and that while Redfield may have suffered loss it was not caused by the TSC.[347] The TSC pointed to evidence of the declining value of taxi-cab licences in 2014 and 2015, which was during the period that the TSC prosecuted a number of ride-share drivers[348] and before the recent decline in value accompanying the Government's August Announcement of the revocation and replacement of taxi-cab licences_,_ to establish that any act or omission of the TSC was not the cause of Redfield's loss.[349]

253 There is no reasonable cause to believe that Redfield could obtain damages because it could not establish the elements of the cause of action for breach of statutory duty. The following are matters of statutory construction which the TSC submitted are problematic for the applicants and which will not be assisted by any material in the TSC's possession:

(a) there is no basis in the TI Act or the TCM Act to say that any relevant provision of those Acts imposed a duty on the TSC to perform particular acts, as distinct from conferring a function or power on the TSC. Without such a mandatory duty, there can be no cause of action for breach of statutory duty;[350]

(b) there is no basis in either the TI Act or the TCM Act to say that any relevant provision of either of those Acts was intended to confer a cause of action in tort if a duty created by that provision was not complied with by the TSC. It is rare that a statute will be construed as being intended to confer such a cause of action.[351] In particular, where a duty is imposed for the benefit of the public generally, and not for the benefit of a specific class of persons, that will point strongly against it being intended to give rise to a private cause of action;[352] and

(c) there is no basis in either the TI Act or the TCM Act to say that Redfield was within the class of persons whom those Acts were intended to protect. To the extent that the TSC's powers in relation to taxi-cab licences exist for the protection of any persons, those powers exist for the protection of drivers and passengers of commercial passenger vehicles.[353] There is no basis in either the TI Act or the TCM Act to say that those powers exist to protect the economic interests of holders of taxi-cab licences.[354]

254 Further even if the other elements of the cause of action were established, Redfield will not be able to establish that any loss it suffered was caused by any act or omission of the TSC.[355]

255 In the alternative, the applicants already have sufficient information to decide whether to commence a proceeding seeking damages for 'negligent performance or negligent omission to perform statutory duties or powers'. That is because the elements of the cause of action for breach of statutory duty turn on matters of statutory interpretation (in relation to which further information will not assist the applicants), and on the fact that the TSC did (or omitted to do) particular acts (which information is publicly available).[356]

256 In the alternative, the TSC submitted that even if there was reasonable cause to believe that the applicants could establish that the TSC owed a duty of the kind described above, the applicants already have sufficient information to decide whether to commence a proceeding seeking that relief. The applicants asserted that they do not have sufficient information to decide whether to commence a proceeding, but do not say what further information they would need. Whether the TSC owed a duty of care to Redfield will turn on matters of statutory interpretation (in relation to which further information will not assist the applicants), and on the nature of the relationship between Redfield and the TSC (which information will necessarily be known to Redfield).[357]

257 Even if the applicants do not already have sufficient information to decide whether to commence a proceeding seeking that relief, none of the categories of documents sought by the applicants would assist them to make that decision. None of the categories relate to whether, in performing its functions and exercising its powers, the TSC owed a duty to take reasonable care to protect the economic interests of Redfield.[358]

258 In considering whether there is reasonable cause to believe that the applicants may have the right to damages for breach of a common law duty of care, it is important to bear in mind a number of propositions, including some of those identified by Riordan J in Alex Fraser v Minister for Planning[359] referred to above (see paras [66]-[67]):

(a) the reasonable cause to believe refers to an objective hypothetical belief;

(b) the use of the word 'may' bespeaks possibility;

(c) the critical element of the test is reasonableness rather than whether the circumstances would cause a belief as opposed to a suspicion or some other hypothetical state of mind;

(d) because the purpose of the Rules is to advance the administration of justice, r 32.05 should be interpreted as requiring a real (as opposed to a fanciful or remote) possibility. However, even a real possibility may be highly improbable;

(e) in the area of negligence, the viability of a cause of action is difficult to determine without a full understanding of all the available evidence. This is particularly so in the area of economic torts where legal principle is developing;[360] and

(f) the common law on the liability of government authorities in negligence is remarkably confused.[361]

259 One of the difficulties in the identification of whether there is reasonable cause to believe Redfield may have a cause of action in negligence against the TSC for pure economic loss (rather than VTF because it has no direct interest in any taxi-cab licence) is that the evidence and submissions of the applicants combine a number of disparate elements. It is difficult to separate out the possible basis for a statutory duty or a common law duty from facts and matters that relate to the declaratory relief sought and the faintly raised claim that there may be misfeasance on the part of someone (Mr Brnovic probably) in public office.

260 It seems clear to me that there is no objectively reasonable cause to believe that Redfield may have a right to relief for breach of a statutory duty on the TSC not to cause economic harm to Redfield by failing to perform the alleged duties identified above (at para [225]). The reasons for this conclusion are those advanced by the TSC and, in summary, are as follows:

(a) the TSC has no duty to charge annual licence fees to holders of taxi-cab licences. It had and has a discretion to take particular action if an annual licence fee is not paid;

(b) the power for the TSC to grant a taxi-cab licence is set out in s 143 of the TCM Act. That power is not conditioned on the payment of a licence fee;

(c) the requirement to pay an annual licence fee is set out in s 147A of the TCM Act. Under s 147A(1), the holder of a commercial passenger vehicle licence must pay the appropriate annual licence fee in respect of every commercial passenger vehicle for which the holder has a licence;

(d) the consequence of a failure to pay the appropriate annual licence fee is set out in s 147A(3), which provides, in substance, that the TSC may suspend or cancel a commercial passenger vehicle licence if the holder of the licence fails to pay any fee required to be paid in respect of the licence or the vehicle by or under the Act. That provision confers a discretion on the TSC regarding whether to take any action if the holder of a taxi-cab licence fails to pay the appropriate annual licence fee. It imposes no duty on the TSC to collect the annual licence fee or to take any action against the holder of a taxi-cab licence who fails to pay the appropriate annual licence fee;

(e) in these circumstances, there is no reasonable cause to believe that the applicants could obtain any relief for breach of a statutory duty against the TSC by reason of the TSC providing a rebate of annual licence fees for taxi-cab licences rather than requiring all fees to be paid;

(f) the TSC also has no duty to take particular compliance or enforcement action against any particular individual. Under s 115F(1) of the TI Act, it is a function of the TSC 'to promote and monitor compliance with any relevant legislation' (s 115F(1)(d)) and 'to monitor, investigate and prosecute breaches of any relevant legislation' (s 115F(1)(db)). The TSC has a range of powers that it can use in exercising those functions, ranging from publishing guidance material, to conducting audits and inspections, to suspending or cancelling licences, or bringing prosecutions for offences under the TCM Act;

(g) in performing its compliance and enforcement functions, and determining which of its powers to exercise, the TSC is guided by its Monitoring, Compliance and Enforcement Policy 2015; and

(h) there is no authority for the proposition that a prosecuting body may owe a duty of care to bring a prosecution in a particular case.[362]

261 The position of the TSC in respect of a claim for economic loss by Redfield is different. Using the checklist devised by McHugh J in Crimmins (referred to above at para [242]), it seems to me that there is reasonable cause to believe that Redfield may have a right to relief against the TSC. I will deal with each of the questions posited by McHugh J under separate headings.

262 Was it reasonably foreseeable that an act or omission of the TSC, including a failure to exercise its statutory powers, would result in injury to Redfield or its interests? The answer in my view is yes, essentially for the reason advanced by the applicants. There is a reasonable cause to believe that, as the regulator of the commercial passenger vehicle industry, it was reasonably foreseeable that if the TSC exercised its powers in the way it did, or failed to exercise those powers to the extent that it in fact did, then Redfield's assignees who operated its licenced taxi-cabs would, immediately after the TSC did not collect the annual licence fee, cease to pay monies due under the assignment agreements. This might have given rise to a loss to Redfield by way of a loss of income.

263 It would also be reasonably foreseeable that Redfield's perpetual licences would decline in value, but the ultimate revocation of the licences by the legislation enacted by the Parliament (and the earlier August Announcement of the proposal to do so) seems to me to result in the proposition that the action or inaction of the TSC could not be attributed as a cause in the ultimate decline in value. But the alleged insufficient action of the TSC in enforcing the licencing requirements before the August Announcement, which Redfield contends caused a decline in the value of its licences, might be justiciable on the basis of a counterfactual that Redfield would have sold the licences before the August Announcement but for the insufficient action of the TSC in its enforcement duties, functions and powers. That counterfactual has not been specifically raised, but that does not prevent the possibility being real.

264 By reason of the TSC's statutory or assumed obligations or control, did the TSC have the power to protect a specific class including the applicants (rather than the public at large) from a risk of harm? There is reasonable cause to believe that had the TSC sufficiently enforced the licencing requirements of the legislation against the ride-share operators or participants, then the decline in value of the licences held by Redfield prior to the August Announcement might not have occurred or not to the extent that it did.

265 Was Redfield, or were Redfield's interests, vulnerable in the sense that Redfield could not reasonably be expected to adequately safeguard itself or those interests from harm? It is tolerably clear that the value of the Redfield perpetual licences and income from those licences was vulnerable to the action and inaction of the TSC, in particular in relation to non-enforcement of the payment of licence fees and the rebating of fees already paid, as well as the enforcement of the licensing requirements applicable to ride-sharing commercial passenger vehicles before the August Announcement. The impact on the income from assigned licences is sufficient to conclude that a cause of Redfield's loss of income was the actions and inactions of the TSC. But the impact on the value of those licences of implementing the Government's policy of rebating licence fees or not collecting them is much more problematical. The evidence is that that announcement immediately rendered the licences unsaleable. That is not conduct of the TSC. After the August Announcement, the failure to collect gazetted licence fees or to rebate already paid licence fees could not change that position.

266 Did the TSC know, or ought the TSC to have known, of the risk of harm to the specific class including the applicant if it did not exercise its powers? There is reasonable cause to believe that the TSC's knowledge of the taxi-cab industry and ride-share operations, as deposed by Mr Brnovic and as revealed in the Spanos affidavits and the Mayas affidavit through the dealings and meetings between the VTF and those participating in it, shows that the TSC knew or ought to have known that there was a risk of economic harm to Redfield and those many other perpetual taxi-cab licence holders, and that the TSC was aware of that risk.

267 The evidence of the applicants and the TSC shows that the TSC was alive to a variety of risks and costs and adverse financial impacts of unlicensed and unlawful commercial passenger vehicle (ride-share) operations on those who were licenced commercial passenger vehicles. Mr Brnovic, on behalf of the TSC, refers to the flagrant disregard of Uber Technologies Inc to 'cease and desist' as directed by the TSC by letter dated 23 October 2014.[363] Such conduct by Uber and other ride-share operators was notorious.[364] It is also relevant that the TSC had started to act in performance of its statutory powers.[365] Such conduct may not be sufficient in itself to justify the imposition of a duty to take positive action for the reasons stated by Aronson.[366] However, an application for preliminary discovery is not the occasion to delve extensively into the merits of the existence of the possible cause of action and, in addition, there is clear authority that an application for preliminary discovery may be sustained either entirely or in relevant part where the applicants seek discovery about what defences are available to the respondent and the possible strength of those defences, or to determine the extent of the respondent's breach and the likely quantum of any damages award.[367]

Interference with policy of legislative functions

268 Would such a duty impose liability with respect to the respondent's exercise of 'core policy-making' or 'quasi-legislative' functions? There is no reason at this stage to think that the imposition of liability on the TSC would interfere with its core policy making or quasi-legislative functions, as distinct from those of the Government.

269 Are there any other supervening reasons in policy to deny the existence of a duty of care (eg, the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? No, not at this stage.

270 In considering whether Redfield may have reasonable cause to believe that it has a right to obtain relief against the TSC for common law negligence in the performance of its duties, functions and powers, I am reminded that there is no particular legal test that is applied to determine whether, in a given set of circumstances, a public authority owes a duty of care in connection with the exercise of a statutory power or discretion.[368] The approach is a multi-factorial one, having regard to the 'salient features' of the circumstances.[369] As Gummow and Hayne JJ said in Graham Barclay:[370]

[146] The existence or otherwise of a common law duty of care allegedly owed by statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.

[147] Where the question posed above is answered in the affirmative, the common law imposes a duty in tort which operates alongside the rights, duties and liabilities created by statute.

.....

[149] An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multifaceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute.

271 Although it is true that, generally speaking, a public authority which has no duty or obligation to exercise a statutory power will not owe any person a duty of care to exercise that power,[371] the multifaceted inquiry that needs to be undertaken may disclose that a duty exists.

272 It should be noted, however, that so far as the applicants rely upon the so called 'intersection between statutory and public powers and private rights' (above at para [229]), the observations of Mason J in Sutherland stand in the way:

Moreover, although a public authority may be under a public duty, enforceable by mandamus, to give proper consideration to the question whether it should exercise a [statutory] power, this duty cannot be equated with, or regarded as a foundation for imposing, a duty of care on the public authority in relation to the exercise of the power. Mandamus will compel proper consideration by the authority of its discretion, but that is all.[372]

273 Another difficulty facing any consideration of liability of the TSC for economic loss suffered by Redfield in consequence of a breach of a common law duty by the TSC is the seemingly inevitable fact that the CPVI Act revoked all perpetual and other licences without any right to compensation for a loss of property. That may mean (not must mean) that there can be no loss or damage suffered by a licence holder whose licence has been so revoked.

274 The applicants' evidence of the enquiries made is primarily in the affidavits of their solicitor, Bronwyn Lisa Lincoln. She deposes to the enquiries that the applicants have made to obtain information sufficient to enable the applicants to decide whether to commence a proceeding to obtain relief.[373] These enquiries include correspondence with the TSC and individual TSC Commissioners requesting production of documents,[374] letters to the Minister requesting production of documents[375] and an application to the TSC for production of documents under the Freedom of Information Act 1982 (Vic) (FOI Act).[376]

275 The response to the enquiries made to the TSC in February 2017 was that the documents requested were publicly available or would not be in the public interest to disclose.[377] That response did not identify which of the documents requested were publicly available and which would not be disclosed in the public interest. Nor were any reasons advanced for the proposition that it was not in the public interest to disclose some of the documents. That provoked Ms Lincoln to write in May 2017 confirming that the documents requested did not include any documents that were publicly available and invited the TSC to articulate the basis for the claim for public interest immunity. There was no response to that letter.[378]

276 The TSC's response to the Freedom of Information (FOI) request was that it would substantially and unreasonably divert the resources of the TSC from other operations, relying on s 25A of the FOI Act.[379] Because of the subsequent passage through Parliament of the CPVI Act on 22 August 2017_,_ it was decided by the applicants to proceed with this preliminary discovery application rather than by application under the FOI Act.

277 The applicants rely on Roads & Traffic Authority of NSW v Australian National Car Parks Pty Ltd,[380] in which Mason P found that the scope of reasonable inquiries in a preliminary discovery application does not extend to an obligation by an applicant to file an FOI request prior to filing an application for preliminary discovery.[381]

278 The TSC does not contend that the applicants were required to make an FOI request in order to be said to have made 'all reasonable inquiries'. It did contend, however, that the applicants must adduce some evidence to show that, before making this application, they took steps to obtain the documents sought from other entities likely to hold them. There was no evidence that the applicants had taken any steps to request documents in Category 2 from the Department, the Minister, the Commonwealth Department of Social Services, Centrelink, or any other part of the Victorian Government or the Commonwealth Government. Nor was there evidence that the applicants took any steps to request documents in Category 7 from the Minister, the Minister's office, or any other part of the Victorian Government.

279 In so far as these alleged failures concern requests of the Minister, it appears that no response was received from her to letters of request.[382] The first letter to the Minister specifically sought documents of the kind in Categories 1 and 2.[383] The second letter repeated the request.[384] It seems likely that had further specific requests been made there would not have been a response.

280 The TSC also complains that except for the documents in Category 1, many of the documents sought were generated outside the TSC and the applicants have not provided evidence of any attempt to obtain those documents from the bodies that created them.[385] This is a matter of minor materiality. The documents in Categories 3, 4 and 5 are internal to the TSC so this objection does not apply to them. The documents in Categories 6, 7 and 9 are documents received by the TSC and it seems to me that inquiry of the TSC is sufficient, and that prospect of a different response from the Minister or the Department is fanciful.

281 Documents in Categories 1, 2 and 8 could not be relevant to a common law claim for damages for negligence of the kind I have identified, being a breach of a duty in relation to the monitoring and enforcement of the commercial passenger vehicle licencing requirements in relation to ride-share operators and participants before the August Announcement, giving rise to lost income or the decline in value of the perpetual licences held by Redfield had it sold the licences before the August Announcement. The other categories (Categories 3, 4, 5, 6, 7 and 9) do seem to relate to the existence or breach of such a duty.

282 The applicants submitted that they do not have sufficient precise information upon which to conclude a view as to the exercise and non-exercise or negligent exercise by the act or omission of the TSC of its extensive monitoring, compliance and enforcement duties to enable it presently to decide whether to bring an action against the TSC.[386] I have already referred to the assertions made in the affidavits in support.[387] It is clear enough, however, that the applicants rely upon the identified categories of documents in Annexure A, and on the submissions made in support of the application, to identify what they lack, and what they need, in order to make a decision. In the context of the multifactorial exercise involved in the identification of whether a public authority owes a common law duty of care to the holders of statutory licences to avoid causing them pure economic loss, whether any such duty has been breached and whether that breach has, or those breaches have, caused them injury, the documents identified in Categories 3 to 9 in Annexure A may inform any decision whether to commence proceedings.

283 There is also clear authority that an application for preliminary discovery may be sustained either entirely or in relevant part where the applicants seek discovery about what defences are available to the TSC and the possible strength of those defences, or to determine the extent of the TSC's breach and likely quantum of any damages award.

284 In relation to some documents in the relevant categories, the TSC claims that they will include documents subject to public interest immunity and that they will be immune from inspection by Redfield by the operation of s 130 of the Evidence Act 2008 (Vic). That may be so, but consideration of what documents may be affected in this way is premature. It is impossible at this stage to anticipate whether that issue will inhibit inspection of any and if so what documents.

Reasonable cause to believe respondent has documents that would assist applicant

285 The applicants' belief that the TSC would have the documents requested in this proceeding, in its possession, is based on the statutory powers, functions and duties of the TSC and its role as the statutory regulating authority of the commercial passenger vehicle industry.[388] The applicants submit, and I agree, that documents generated from outside the TSC may nevertheless have likely come into the TSC's possession in relation to its performance as the statutory regulator of the commercial passenger vehicle industry or because of its extensive role in administering the Government's reform of the commercial passenger vehicle industry.[389]

286 The limited right to relief I have identified, being the possible breach of a duty of care that Redfield may have (and a related declaration) relating to the monitoring and enforcement of the licencing requirements of the law in relation to:

(a) ride-share operators and participants; and

(b) the failure to collect licence fees and the rebate of licence fees already paid,

giving rise to damage, means that only some categories of documents sought are relevant.

287 It seems to me that this restricts discovery to documents in Categories 3, 4, 5, 6, 7 and 9 insofar as they concern monitoring and enforcement of the licencing requirements of the law to the August Announcement (in relation to ride-share operators and participants) and after the August Announcement (in relation to the failure to collect licence fees and the rebate of licence fees already paid). In relation to all these categories the descriptions may be too broad. So for example, Category 6 refers to any document authorising or directing TSC officers not to perform or enforce the functions expressed in s 115F of the TI Act. That is a wide field and encompasses both directions by the Minister and internal TSC directions in relation to many functions that will not be relevant. It is also likely that, when refined, there is considerable overlap between the categories. It will be necessary to hear the parties further as to the appropriate definition of the categories of documents and as to the appropriate orders.

288 For the reasons above, Redfield, and not the VTF, is entitled to preliminary discovery of some of the documents generally described in Categories 3, 4, 5, 6, 7 and 9 in Annexure A to these reasons. It will be necessary for the parties to make further submissions as to the description of the documents to be discovered.

1. Any document recording or referencing the financial and/or economic modelling and/or calculations undertaken by or on behalf of or at the request of the Victorian Government for the purpose of determining the amount and extent of 'transition assistance' offered to holders of perpetual taxi licences in Victoria as referred to, inter alia:

(a) on the website of the Economic Development, Jobs, Transport and Resources Department at http://economicdevelopment.vic.gov.au/transport/rail-and-roads/taxis/support-package-taxi-and-hire-car-reform;

(b) in letters sent by the TSC last week to holders of perpetual licences following the passing of the Commercial Passenger Vehicle Industry Act 2017 (Vic); and

(c) the Hansard debate of 23 June 2017 at page 3767,

and dated between 23 August 2016 and 30 November 2016;

1. Any document constituting an evaluation made by the Minister for Transport (Minister), the Victorian Government and/or the TSC of any advice or recommendation which informed the announcement of the TSC regarding the 'value' of perpetual licences for the purpose of Centrelink applications (accessed via the following link on the TSC's website: http://taxi.vic.gov.au/owners-and-operators/taxi-owners-and-operators/licence-transfer-and-assignment/metropolitan-taxi-licece-transfer-prices);
2. Any policy document or instruction or guidance document generated within the TSC and/or applied for the TSC's internal purposes dated between 1 December 2015 and 23 August 2016 recording the manner in which the TSC would administer licensing of commercial passenger vehicles, including the collection of fees applicable to both perpetual and annual taxi licences, and, specifically and without limiting the generality of the request, documents recording or evidencing or referencing a decision or instruction or directive to:

(a) provide a fee rebate to holders of fixed term or annual licences;

(b) waive payment of the full annual or fixed term tax licence fee; or

(c) require new applicants for annual taxi licences to pay the full annual licence fee plus the administrative fee,

but excluding all documents applicable to specific licence holders and the payment of, or rebate of, licence fees for those individual licence holders.

1. Any document generated within the TSC and/or for the TSC's internal purposes dated between 1 December 21015 and 23 August 2016 recording the manner in which the TSC will promote and monitor compliance of commercial passenger vehicles (including ride sharing services) with relevant legislation, including any differentiation between different categories of commercial passenger vehicles.
2. Any document dated between 1 December 2015 and 23 August 2016:

(a) recording or evaluating the TSC's compliance (or otherwise) with the Taxi Services TSC Monitoring, Compliance and Enforcement Policy 2015 (Policy); and

(b) directing, promoting, requesting or evidencing conduct of the TSC which is inconsistent with the Policy;

1. Any document dated between 1 December 2015 and 23 August 2016 authorising or otherwise directing TSC officers to not perform or enforce the functions expressed in section 115F of the Transport Integration Act 2010 (Vic), being, inter alia:

(a) to administer licensing, accreditation and other requirements imposed on participants in the commercial passenger vehicle industry (sub-s 115F(1)(b));

(b) to promote and monitor compliance with any relevant legislation (sub-s 115F(1)(d)); and

(c) to investigate and prosecute breaches of any relevant legislation (sub-s 115F(1)(db)),

(collectively referred to as functions)

1. Any document dated between 1 December 2015 and 23 August 2016 from the Minister or the Minister's office to the TSC and/or any of the TSC's staff or officers evidencing or recording an instruction, direction or request in relation to the manner in which the TSC is to carry out its functions.
2. Any document evidencing or recording a direction from the Minister or of the TSC for the purpose of the TSC's exercise of function, duty and power pursuant to, or in relation to:

(a) section 115F(1)(dc) of the Transport Integration Act 2010 (Vic); or

(b) section 115F(1)(de) of the Transport Integration Act 2010 (Vic), relevant to the reforms announced by the Government in August 2016

but excluding any document which relates specifically to a particular licence holder.

1. Any document dated between 1 December 2015 and 23 August 2016 constituting or containing a directive to any employee or agent of the TSC in relation to the quantum of fees to be charged for any perpetual, fixed term or annual taxi licence administration and processing of taxi licences, including any applicable rebate or refund.

[1] Associations Incorporation Reform Act 2012 (Vic) s 29. Pursuant to s 29(2)(c) of the Associations Reform Act, Taxi Families may sue and be sued in its corporate name and may, pursuant to s 30(d) of that Act, 'do anything that is incidental or conducive to the attainment of the purposes and the exercise of the powers of the association'.

[2] Victorian Taxi Families Inc and Redfield Court Holdings Pty Ltd, 'Applicants' Outline of Submissions', Submission in Victorian Taxi Families v Taxi Services Commission, S CI 2017 03730, 2 October 2017, [28] (Applicants' Outline).

[3] The Fels Taxi Industry Inquiry was announced by the Premier of Victoria Mr Baillieu on 28 March 2011. To support the Inquiry, the Government introduced the Transport Legislation Amendment (Taxi Services Reform and Other Matters) Bill 2011 (Vic) in June 2011. The resultant Act established the TSC as a body corporate under the Transport Integration Act 2010 (Vic) (TI Act). The Report was not in evidence before the Court.

[4] Affidavit of Sandra Spanos, sworn 11 September 2017, [4]-[20] (first Spanos affidavit).

[5] Affidavit of Mircina Mayas, sworn 12 September 2017, [4] (Mayas affidavit).

[8] First Spanos affidavit; Affidavit of Sandra Spanos, sworn 3 October 2017 (second Spanos affidavit).

[10] Affidavit of Bronwyn Lisa Lincoln, sworn 7 September 2017 (first Lincoln affidavit); Affidavit of Bronwyn Lisa Lincoln, sworn 1 November 2017 (second Lincoln affidavit).

[11] Affidavit of Steven Brnovic, sworn 2 October 2017 (first Brnovic affidavit); Affidavit of Steven Brnovic, sworn 13 October 2017 (second Brnovic affidavit).

[12] Victoria, Parliamentary Debates, Legislative Assembly, 10 December 2009, 4568-74 (Lynne Kosky).

[15] Section 115F(1)(b) was repealed by the Commercial Passenger Vehicle Industry Amendment (Further Reforms) Act 2017 (Vic) s 21 sch 1 item 11.13.

[16] Ibid s 115F(1); Taxi Services Commission, 'Submissions for the Respondent', Submission in Victorian Taxi Families Inc v Taxi Services Commission, S CI 2017 03730, 2 October 2017, [12] (Respondent's Outline).

[18] Transport (Compliance and Miscellaneous) Act 1983 (Vic) s 86 (TCM Act).

[23] The traditional view of a licence of the kind described here as a perpetual licence, capable of being sold or assigned, is that it is property: Commissioner of Taxation (Cth) v Murry (1998) 193 CLR 605, [62], [67] (Murry's Case).

[25] Subject to the regulations and to s 139(1B).

[27] Ibid div 4 (ss 130-7E) regulates the accreditation of taxi-industry participants. Part VI div 6 (ss 163-9Z) further regulates accreditation and creates offences.

[38] Exhibit BLL:1 to the first Lincoln affidavit, 3.

[39] Exhibit BLL:1 to the first Lincoln affidavit, 3-4.

[44] Exhibit SS:5 to the first Spanos affidavit, 1; First Spanos affidavit, [29].

[45] First Brnovic affidavit, [23]-[24]; Exhibit SB:01 to the first Brnovic affidavit.

[47] Payable under TCM Act s 147A(2B).

[49] Ibid [28]; Exhibit SB:3 to the first Brnovic affidavit.

[50] First Brnovic affidavit, [22], [29].

[51] Respondent's Outline [30]; Victorian Taxi Families Inc and Redfield Court Holdings Pty Ltd, 'Reply Submission on Behalf of the First and Second Applicants', Submission in Victorian Taxi Families and Anor v Taxi Services Commission, S CI 2017 03730, 3 November 2017, [1(f)]-[1(g)] (Applicants' Reply Submissions).

[57] Victoria, Transport (Compliance and Miscellaneous) Act 1983: Taxi Services Commission, No S 118, 28 April 2016; Exhibit SS:6 to the first Spanos affidavit.

[58] First Spanos affidavit, [36]-[37].

[63] The TSC published such a policy in 2015: First Spanos affidavit, [26]; Exhibit SS:3 to the first Spanos affidavit.

[69] [1998] 3 VR 435.

[71] [2008] VSC 392 (Beston Parks).

[72] Ibid [52]-[53] (citations omitted).

[73] [2004] FCA 1360; (2004) 211 ALR 147, 155 [28] (St George).

[75] [2004] FCA 679 [73] (Emmett J).

[76] St George [2004] FCA 1360; (2004) 211 ALR 147, 154 [26(d)].

[77] [2018] VSC 391.

[78] Ibid [47], citing Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy and Another (2008) 166 FCR 64, 79 [59] (French, Weinberg and Greenwood JJ).

[79] Alex Fraser Pty Ltd v Minister for Planning [2018] VSC 391, [46]-[49], citing, eg, Schmidt v Won [1998] 3 VR 435, 445 (Ormiston JA with whom Charles and Batt JJA agreed).

[80] Alex Fraser Pty Ltd v Minister for Planning [2018] VSC 391, [51].

1. [83] Ibid [54] (footnotes omitted).

[84] Plzen Pty Ltd v P&O Wharf Management Pty Ltd [2007] VSC 318, [17(e)].

[85] Schmidt v Won [1998] 3 VR 435, 465; Beston Parks [2008] VSC 392, [53]; United Energy Ltd v Energy Risk Management Pty Ltd [1998] VSC 133, [32] (United Energy).

[86] Schmidt v Won [1998] 3 VR 435, 465; Beston Parks [2008] VSC 392, [53].

[87] Plzen Pty Ltd v P&O Wharf Management Pty Ltd [2007] VSC 318, [17(c)].

[88] Beston Parks [2008] VSC 392, [53].

[89] Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64, 78 [53] (French, Weinberg and Greenwood JJ); Alex Fraser Pty Ltd v Minister for Planning, [2018] VSC 391 [54(c)].

[90] Morton v Nylex Ltd [2007] NSWSC 562, [33].

[91] Kallitsas v Emerson Finance Pty Ltd [2008] VSC 180, [26].

[92] Morton v Nylex Ltd [2007] NSWSC 562, [33].

[94] BJ Bearings Pty Ltd v Whitehead [2016] VSC 44, [19(2)] (BJ Bearings).

[95] Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2008] FCAFC 133; (2008) 169 FCR 435, 443; BJ Bearings [2016] VSC 44, [19(2)].

[96] St George [2004] FCA 1360; (2004) 211 ALR 147, 154 [26(f)] (citations omitted); BJ Bearings [2016] VSC 44, [19(2)].

[97] Beston Parks [2008] VSC 392, [81].

[99] Australian Football League v Stadium Operations Ltd [2009] VSC 264, [59]-[61] (AFL v SOL); United Energy [1998] VSC 133, [103].

[100] AFL v SOL [2009] VSC 264, [61]; BJ Bearings [2016] VSC 44, [19(3)].

[101] BJ Bearings [2016] VSC 44, [19(3)].

[102] Beston Parks [2008] VSC 392, [56].

[103] AFL v SOL [2009] VSC 264, [59]-[62]; BJ Bearings [2016] VSC 44, [19(4)].

[104] Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69; (2010) 77 NSWLR 506, 528 [86]; BJ Bearings [2016] VSC 44, [19(5)].

[106] AFL v SOL [2009] VSC 264, [76].

[107] Constitution Act 1975 (Vic) s 19(1).

[108] Bill of Rights 1688 (Eng) 1 Wm & M, c 2 art 9.

[109] Quoted in Prebble v Television New Zealand Ltd [1994] UKPC 4; [1995] 1 AC 321, 332 (Prebble); see also Comalco Ltd v Australian Broadcasting Corporation (1983) 50 ACTR 1, 3 (Blackburn J) (Comalco).

[111] The decision of Cantor J is unreported. The decision of Hunt J is at (1986) 5 NSWLR 18.

[112] See Laurance v Katter [2000] 1 Qd R 147, 203; Rann v Olsen [2000] SASC 83; (2000) 76 SASR 450, 468-9; Amann Aviation Pty Ltd v Commonwealth of Australia [1988] FCA 24; (1988) 19 FCR 223, 229 (Beaumont J); Prebble [1994] UKPC 4; [1995] 1 AC 321, 333.

[113] See the reasons of Davies JA in Laurance v Katter [2000] 1 Qd R 147, 202-4.

[114] Prebble [1994] UKPC 4; [1995] 1 AC 321, 333.

[116] Rann v Olsen [2000] SASC 83; (2000) 76 SASR 450, 461, 468-9, 485; Mees v Roads Corp [2003] FCA 306; (2003) 128 FCR 418, 445 [84] (Gray J).

[117] Rann v Olsen [2000] SASC 83; (2000) 76 SASR 450, 490.

[120] [2003] FCA 306; (2003) 128 FCR 418, 441-6 [72]-[87].

[121] [1992] UKHL 3; [1993] AC 593.

[122] Enid Campbell, 'Parliamentary Privilege and Admissibility of Evidence' (1999) 27 Federal Law Review 367, 381.

[123] [2003] FCA 306; (2003) 128 FCR 418.

[124] Ibid 443-4 [80]-[81] (Gray J).

[125] [1992] UKHL 3; [1993] AC 593.

[126] Mees v Roads Corp [2003] FCA 306; (2003) 128 FCR 418, 445 [85] (emphasis added).

[127] Ibid 445 [86] (emphasis added).

[128] See Australian Medical Association (NSW) v Minister for Health (NSW) (No 2) (1992) 26 NSWLR 114, 121-4; Cornwall v Rowan [2004] SASC 384; (2004) 90 SASR 269, 387-9. See also Constitution Act 1975 (Vic) sub-ss 19A(7), 19A(9).

[129] Taxi Services Commissioner, 'Further Submissions for the Respondent', Submission in Victorian Taxi Families v Taxi Services Commissioner, S CI 2017 03730, 13 October 2017, [94] (Respondent's Further Submissions).

[130] See, eg, Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 35-7; Finnane v Australian Consolidated Press Ltd [1978] 2 NSWLR 435, 438-9 (Finnane v ACP); Uren v John Fairfax & Sons Ltd [1979] 2 NSWLR 287, 289; Mundey v Askin [1982] 2 NSWLR 369; Henning v Australian Consolidated Press Ltd [1982] 2 NSWLR 374, 375; Australian Medical Association (NSW) v Minister for Health (NSW) (No 2) (1992) 26 NSWLR 114.

[131] See Amann Aviation Pty Ltd v Commonwealth [1988] FCA 24; (1988) 19 FCR 223, 230-1.

[132] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 37. Stephen J, the only other Judge who mentioned parliamentary privilege, ventured no analysis because, it would seem, all the documents were public in any event having been tabled in the Parliament and reported in the news media: at 69-71.

[133] [1972] 1 QB 522; Amann Aviation Pty Ltd v Commonwealth of Australia [1988] FCA 24; (1988) 19 FCR 223, 225.

[134] Finnane v ACP [1978] 2 NSWLR 435, 438.

[136] [1982] 2 NSWLR 369; Amann Aviation Pty Ltd v Commonwealth of Australia [1988] FCA 24; (1988) 19 FCR 223, 226.

[137] Mundey v Askin [1982] 2 NSWLR 369, 373.

[138] [1982] 2 NSWLR 374, 375. See also Amann Aviation Pty Ltd v Commonwealth of Australia [1988] FCA 24; (1988) 19 FCR 223, 226.

[139] [1983] 2 All ER 233.

[140] R v Secretary of State for Trade; Ex parte Anderson Strathclyde plc [1983] 2 All ER 233, 239. See also Amann Aviation Pty Ltd v Commonwealth of Australia [1988] FCA 24; (1988) 19 FCR 223, 226-7.

[141] [1988] FCA 24; (1988) 19 FCR 223.

[143] Blackstone's Commentaries on the Laws of England (17th ed, 1830) vol 1, 163; Prebble [1994] UKPC 4; [1995] 1 AC 321, 332.

[144] Prebble [1994] UKPC 4; [1995] 1 AC 321, 332; Television New Zealand Ltd v Prebble [1993] 3 NZLR 513, 517 (Cooke P), cited in Rann v Olsen [2000] SASC 83; (2000) 76 SASR 450, 473.

[145] Rowley v O'Chee [2000] 1 Qd R 207, 222-3, 227.

[146] Prebble [1994] UKPC 4; [1995] 1 AC 321, 334.

[147] Comalco (1983) 50 ACTR 1, 5.

[148] Prebble [1994] UKPC 4; [1995] 1 AC 321, 337; Amann Aviation Pty Ltd v Commonwealth of Australia [1988] FCA 24; (1988) 19 FCR 223, 231.

[149] Mees v Roads Corp [2003] FCA 306; (2003) 128 FCR 418, 445 [85].

[150] Amann Aviation Pty Ltd v Commonwealth of Australia [1988] FCA 24; (1988) 19 FCR 223, 231; R v Secretary of State for Trade; Ex parte Anderson Strathclyde plc [1983] 2 All ER 233, 239.

[151] Ibid; Prebble [1994] UKPC 4; [1995] 1 AC 321, 333.

[152] Rowley v O'Chee [2000] 1 Qd R 207, 223.

[156] Pepper v Hart [1992] UKHL 3; [1993] AC 593, particularly at 614, 616, 617, 619, 621, and 639_._ In Victoria (and all jurisdictions in Australia), there is legislation which regulates the use of proceedings in Parliament for the purpose of the interpretation of a provision of an Act or subordinate instrument: see Interpretation of Legislation Act 1984 (Vic) s 35; in particular, s 35(b).

[157] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 36-7.

[158] Halden v Marks (1995) 17 WAR 447, 462.

[159] Amann Aviation Pty Ltd v Commonwealth of Australia [1988] FCA 24; (1988) 19 FCR 223, 232.

[160] Halden v Marks (1995) 17 WAR 447, 462.

[161] Exhibit SB:04 to the first Brnovic affidavit, 2.

[162] Applicants' Reply Submissions [28].

[163] Applicants' Reply Submissions [16].

[164] (a) $100,000 for the first licence; (b) $50,000 for the second, third and fourth licences; but (c) no assistance or compensation for subsequent licences formerly held and revoked.

[165] Exhibit SS:14 to the first Spanos affidavit, 1.

[166] Exhibit BLL-1 to the first Lincoln affidavit, 4.

[168] Applicants' Outline [17]-[19].

[170] Applicants' Outline [40]; Applicants' Reply Submissions [19], [22]-[24].

[171] Transcript of Proceedings, Victorian Taxi Families v Taxi Services Commission (Supreme Court of Victoria, S CI 2017 03730, Associate Justice Derham, 18 October 2017) 76 (Transcript of Proceedings of 18 October 2017).

[173] See, eg, BJ Bearings [2016] VSC 44; Beston Parks [2008] VSC 392; Schmidt v Won [1998] 3 VR 435.

[174] Transcript of Proceedings of 18 October 2017, 82.

[176] Transcript of Proceedings of 18 October 2017, 145.

[178] Transcript of Proceedings of 18 October 2017, 146.

[179] Applicants' Outline [44]-[48].

[181] Second Brnovic affidavit, [20]; Exhibit SB:15 to the second Brnovic affidavit.

[182] Second Brnovic affidavit, [22]; Exhibit SB:16 to the second Brnovic affidavit.

[183] [2010] VSC 335; (2010) 30 VR 1, [88].

[184] Applicants' Reply Submissions [87].

[186] (2000) 200 CLR 591 (Truth About Motorways).

[187] Transcript of Proceedings of 18 October 2017, 125-6.

[188] Applicants' Reply Submissions [89].

[189] Alliance to Save Hinchinbrook Inc v Cook [2007] 1 Qd R 102, 105, citing Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27, 42 (Stephen J).

[190] Respondent's Outline [74]-[75].

[191] Respondent's Further Submissions [3]-[19].

[194] (1980) 146 CLR 493, 527 (ACF Case).

[196] Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27, 42 (Stephen J).

[197] Respondent's Further Submissions [10], referring to North Coast Environment Council Inc v Minister for Resources [1994] FCA 1556; (1994) 55 FCR 492, 512; Alliance to Save Hinchinbrook Inc v Cook [2007] 1 Qd R 102, 105.

[198] Respondent's Further Submissions [11].

[202] [1998] HCA 49; (1998) 194 CLR 247.

[203] Ibid 251 [4]-[5]; Respondent's Further Submissions [17].

[204] [1998] HCA 49; (1998) 194 CLR 247, 267-8 [52].

[205] Respondent's Further Submissions [17].

[206] [2016] WASC 138 (Martin).

[208] Respondent's Further Submissions [18]; Martin [2016] WASC 138, [63].

[209] The term 'person' is defined to mean 'a human being': Charter Act s 3.

[210] Transcript of Proceedings of 18 October 2017, 168.

[211] Applicants' Reply Submission [11].

[213] [1968] HCA 23; (1968) 119 CLR 222, 230-2.

[214] The evidence in support of this assertion referred to by the applicants was references in Hansard (including the Victoria, Parliamentary Debates, Legislative Assembly, 23 February 2017, 392 (Jacinta Allan, Minister for Transport), Second Reading Speech, and Statement of Compatibility, 10). The statements to be found there are equivocal. The significant point made was that to the extent the holder of a licence is deprived of property that is in accordance with law, as required by s 20 of the Charter Act. The relevant 'law' is, of course, the provisions of the Bill when enacted that revoked the licences.

[215] Applicants' Reply Submission [15].

[216] Exhibit BLL:12 to the first Lincoln affidavit.

[217] First Lincoln affidavit, [15(a)].

[222] [1996] FCA 391 (Alphapharm).

[223] [1992] HCA 10; (1992) 175 CLR 564, 581-2 (Mason CJ, Dawson, Toohey and Gaudron JJ) (Ainsworth).

[224] (1978) 52 ALJR 180, 188 (Mason J), 189 (Aickin J) (Gardner).

[225] Taxi Services Commission, 'Reply Submissions of the Respondent', Submission in Victorian Taxi Families v Taxi Services Commission, S CI 2017 03730, 15 November 2017, [11] ('Respondent's Reply Submissions').

[226] Applicants' Reply Submissions [15].

[228] See Australian Constitution s 51(xxxi).

[229] Respondent's Reply Submissions [15].

[230] Victoria, Parliamentary Debates, Legislative Assembly, 23 February 2017, 392 (Jacinta Allan, Minister for Transport), Second Reading Speech and Statement of Compatibility 10.

[231] [1992] HCA 10; (1992) 175 CLR 564, 581-2 (Mason CJ, Dawson, Toohey and Gaudron JJ) (footnotes omitted).

[232] See Gardner (1978) 52 ALJR 180, 188 (Mason J), 189 (Aickin J).

[234] Referred to in para [24] of the first Brnovic affidavit, being an Industry Assistance Package consisting of three key elements: (1) assistance payments for eligible licence holders ('transition assistance'); (2) rebates to annual and peak service licence holders ('rebate policy'); and (3) the Hardship Fund (later known as the Fairness Fund).

[235] Applicants' Reply Submissions [19].

[237] First Brnovic affidavit, [60]; Exhibit SB:08 to the first Brnovic affidavit.

[238] Applicants' Reply Submissions [26].

[239] Applicants' Reply Submissions [19]-[34].

[242] Respondent's Reply Submissions [29].

[245] See, eg, Charter Act ss 4, 7(3), 38. Note that 'entity' is defined in s 38 of the Interpretation of Legislation Act 1984 (Vic) to include a person (both a human being and a legal person) and an unincorporated body.

[246] Applicants' Reply Submissions [20].

[247] The TI Act includes a provision requiring the TSC to comply with general and specific directions of the Minister: see s 115MA.

[248] Applicants' Outline [20], read with Applicants' Reply Submissions [23].

[249] Bare v Independent Broad-Based Anti-Corruption Commission [2015] VSCA 197; (2015) 48 VR 129, 205 [245].

[250] See Ainsworth [1992] HCA 10; (1992) 175 CLR 564, 581-2 (Mason CJ, Dawson, Toohey and Gaudron JJ). See also Gardner (1978) 52 ALJR 180, 188 (Mason J), 189 (Aickin J).

[251] Applicants' Reply Submissions [42].

[258] Applicants' Reply Submission [24].

[259] Second Brnovic affidavit, [12].

[260] Transcript of Proceedings of 18 October 2017, 141.

[262] Respondent's Reply Submissions [42].

[265] Ainsworth [1992] HCA 10; (1992) 175 CLR 564, 581-2.

[266] Applicants' Reply Submissions [52].

[269] Victoria, Transport (Compliance and Miscellaneous) Act 1983: Taxi Services Commission, No S 93, 24 April 2015; Victoria, Transport (Compliance and Miscellaneous) Act 1983: Determination of Fees, No S 191, 1 July 2015; Victoria, Transport (Compliance and Miscellaneous) Act 1983: Taxi Services Commission, No S 118, 28 April 2016.

[270] First Brnovic affidavit, [27].

[271] Applicants' Reply Submission [48].

[274] Applicants' Reply Submission [49].

[279] Applicants' Reply Submissions [51].

[280] Respondent's Reply Submissions [47]-[51], referring to Galluzzo v Little [2013] NSWCA 116, [94]-[95]; Roads and Maritime Services v Porret [2014] NSWCA 30; (2014) 86 NSWLR 467, 476 [42]. See also Gardner (1978) 52 ALJR 180, 188 (Mason J), 189 (Aickin J).

[281] See Gardner (1978) 52 ALJR 180, 188 (Mason J), 189 (Aickin J).

[282] Minister for Immigration and Multicultural Affairs v Ozmanian [1996] FCA 1017; (1996) 71 FCR 1, 31-3 (Kiefel J, Sackville J agreeing) (Ozmanian).

[283] Respondent's Reply Submissions [52].

[285] Ibid [54], referring to Alphapharm [1996] FCA 391, [26]-[27]; Glencore International AG v Selwyn Mines Ltd [2005] FCA 801; (2005) 223 ALR 238, 240-1 [13].

[286] Respondent's Reply Submissions [55].

[287] [1996] FCA 1017; (1996) 71 FCR 1, 31-3 (Kiefel J, Sackville J agreeing).

[288] Particularly the second Brnovic affidavit,[13]-[19]; Exhibits SB:12 and SB:13 to the second Brnovic affidavit.

[289] Applicants' Reply Submissions [72].

[290] Exhibit SS:9 to the first Spanos affidavit.

[291] Applicants' Reply Submissions [74].

[293] See Martin [2016] WASC 138, [73].

[295] Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75, 90-6 (Barton); Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, 513, 534 (Maxwell); R v Apostolides [1984] HCA 38; (1984) 154 CLR 563, 575 (Apostolides).

[296] Mensinga v Director of Public Prosecutions [2003] ACTCA 1, [34]-[36] (Mensinga).

[297] Respondent's Reply Submissions [60].

[301] Maxwell [1996] HCA 46; (1996) 184 CLR 501, 534.

[303] Transcript of Proceedings of 18 October 2017, 87-8, referring generally to Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 (Sutherland); Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 (Crimmins); Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 (Graham Barclay).

[305] Mayas affidavit, [13]-[15]; Applicants' Reply Submissions [54].

[306] First Brnovic affidavit, Exhibit SB:04; First Lincoln affidavit; Exhibit BLL:8.

[308] Applicants' Reply Submissions [59].

[309] Exhibit BLL:30 to the second Lincoln affidavit, 10.

[310] [1999] HCA 59; (1999) 200 CLR 1.

[311] Crimmins [1999] HCA 59; (1999) 200 CLR 1, 21 [33] (Gaudron J).

[312] Respondent's Further Submissions [35].

[313] Applicants' Reply Submissions [57], referring to Crimmins [1999] HCA 59; (1999) 200 CLR 1, 25-51 [48]-[133] (McHugh J).

[314] The prospect of the VTF acting in a representative capacity was raised but not adequately explained or justified. Accordingly I will take it no further.

[315] Section 90 is in the TCM Act pt VI div 1_._ Part VI regulates the licensing of commercial passenger vehicles, amongst other things.

[316] Transcript of Proceedings of 18 October 2017, 83.

[317] [1999] HCA 59; (1999) 200 CLR 1.

[319] [1999] HCA 59; (1999) 200 CLR 1, [93].

[320] Applicants' Reply Submissions [56].

[321] Transcript of Proceedings of 18 October 2017, 86.

[324] Respondents' Reply Submissions [73]; Respondent's Further Submissions [5].

[328] Respondents' Outline [55], referring to Barton [1980] HCA 48; (1980) 147 CLR 75, 90-6; Maxwell [1996] HCA 46; (1996) 184 CLR 501, 513, 534; Apostolides [1984] HCA 38; (1984) 154 CLR 563, 575.

[329] Respondents' Outline [55], referring to Mensinga [2003] ACTCA 1, [34]-[36].

[330] Respondent's Further Submissions [46].

[333] Ibid; Respondent's Further Submissions [28].

[334] Respondents' Outline [62]; Respondent's Further Submissions [35].

[335] Respondent's Further Submissions [35].

[336] Applicants' Oral Submissions; Respondent's Further Submissions [36].

[337] Respondent's Further Submissions [36].

[338] [1985] HCA 41; (1985) 157 CLR 424, 501 (Deane J).

[339] Respondent's Further Submissions [37].

[341] Respondents' Outline [41]-[57]; Respondent's Further Submissions [34], [44].

[342] Respondent's Further Submissions [33].

[343] Ibid [55], referring to Northern Territory v Mengel (1995) 185 CLR 307, 347 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ).

[344] Respondent's Further Submissions [58].

[346] Ibid [5], [24], [40], [51].

[348] Ibid [38]; First Brnovic affidavit, [15]-[19]; Exhibit SB:04 to the first Brnovic affidavit.

[349] Respondent's Further Submissions [38].

[351] See Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 424 (Brennan CJ, Dawson and Toohey JJ).

[352] See generally X v Bedfordshire County Council [1995] UKHL 9; [1995] 2 AC 633; Morrison Sports Ltd v Scottish Power UK plc [2010] UKSC 37; [2010] 1 WLR 1934; Respondent's Further Submissions [46].

[354] Respondent's Further Submissions [47].

[355] Ibid [49]; Respondent's Reply Submissions [68(b)].

[356] Respondent's Further Submissions [69].

[359] [2018] VSC 391.

[360] Cf Kirby J in Wickstead v Browne (1992) 30 NSWLR 1, 5.

[361] Mark Aronson, 'Government Liability in Negligence' [2008] MelbULawRw 2; (2008) 32 Melbourne University Law Review 44, 46 (Aronson).

[362] Mensinga [2003] ACTCA 1, [34]-[36].

[363] First Brnovic affidavit, [17].

[364] Elizabeth Pollman and Jordan M Barry, 'Regulatory Entrepreneurship' (2017) 90 Southern California Law Review 1, 4-6, 15-17, 55-6.

[365] First Brnovic affidavit, [14]-[20], Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330, 348 (Brennan CJ), 372 (McHugh J), 391-2 (Gummow J), 423 (Kirby J).

[366] See Aronson, above n 360, 70. However, it is noted that there is no equivalent to s 44 of the Civil Liability Act 2002 (NSW) in Victoria: at 73-4.

[368] See Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215, 260-1 [131]-[134] (Crennan and Kiefel JJ). See also Hunter Area Health Service v Presland [2005] NSWCA 33; (2005) 63 NSWLR 22, 26-7 [7] (Spigelman CJ); Sutherland Shire Council v Becker [2006] NSWCA 344, [19] (Giles JA), [82] (Bryson JA); Respondent's Further Submissions [29].

[369] For a non-exhaustive list of 'salient features, see Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649, 676 [102]-[103]. See also Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483; (2016) 243 FCR 17, 70 [203] (Plaintiff S99); Respondent's Further Submissions [29].

[370] [2002] HCA 54; (2002) 211 CLR 540, 596 [146]-[149] (citations omitted).

[371] Sutherland [1985] HCA 41; (1985) 157 CLR 424, 459-60 (Mason J). See also Plaintiff S99 [2016] FCA 483; (2016) 243 FCR 17, 74 [216].

[372] [1985] HCA 41; (1985) 157 CLR 424, 467; see also Crimmins [1999] HCA 59; (1999) 200 CLR 1, 35 (McHugh J); Graham Barclay [2002] HCA 54; (2002) 211 CLR 540, 555 [9], 562 [32] (Gleeson CJ); Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15; [2004] 2 All ER 326, 353.

[373] First Lincoln affidavit, [3]-[13].

[374] Exhibits BLL:1, BLL:7 and BLL:21 to first Lincoln affidavit.

[375] Exhibits BLL:12 and BLL:16 to first Lincoln affidavit.

[376] Exhibit BLL:17 to first Lincoln affidavit.

[377] First Lincoln affidavit, [11]; Exhibit BLL:6 to first Lincoln affidavit.

[378] First Lincoln affidavit, [13].

[379] Exhibit BLL:19 to first Lincoln affidavit.

[380] [2007] NSWCA 114.

[381] Applicants' Reply Submission [75].

[382] First Lincoln affidavit, [15].

[383] Exhibit BLL:12 to the first Lincoln affidavit, 9.

[384] Exhibit BLL:16 to the first Lincoln affidavit.

[385] Respondent's Outline [5], [107].

[387] Mayas affidavit, [21]; First Spanos affidavit, [60]; First Lincoln affidavit, [28].

[388] First Lincoln affidavit, [24].