THE HONOURABLE TERRENCE KEITH WALDRON MLA, MINISTER FOR RACING & GAMING

Practice and procedure - Application for pre­action discovery - Turns on own facts

First-named First Plaintiff : Mr D H Solomon & Ms L M Retallack

Second-named First Plaintiff : Mr D H Solomon & Ms L M Retallack

Third-named First Plaintiff : Mr D H Solomon & Ms L M Retallack

Fourth-named First Plaintiff : Mr D H Solomon & Ms L M Retallack

Fifth-named First Plaintiff : Mr D H Solomon & Ms L M Retallack

Sixth-named First Plaintiff : Mr D H Solomon & Ms L M Retallack

Seventh-named First Plaintiff : Mr D H Solomon & Ms L M Retallack

Eighth-named First Plaintiff : Mr D H Solomon & Ms L M Retallack

Ninth-named First Plaintiff : Mr D H Solomon & Ms L M Retallack

Tenth-named First Plaintiff : Mr D H Solomon & Ms L M Retallack

Eleventh-named First Plaintiff : Mr D H Solomon & Ms L M Retallack

Twelfth-named First Plaintiff : Mr D H Solomon & Ms L M Retallack

Thirteenth-named First Plaintiff : Mr D H Solomon & Ms L M Retallack

Fourteenth-named First Plaintiff : Mr D H Solomon & Ms L M Retallack

Fifteenth-named First Plaintiff : Mr D H Solomon & Ms L M Retallack

Sixteenth-named First Plaintiff : Mr D H Solomon & Ms L M Retallack

Seventeenth-named First Plaintiff : Mr D H Solomon & Ms L M Retallack

Eighteenth-named First Plaintiff : Mr D H Solomon & Ms L M Retallack

Nineteenth-named First Plaintiff : Mr D H Solomon & Ms L M Retallack

Twentieth-named First Plaintiff : Mr D H Solomon & Ms L M Retallack

Speaker of the Legislative Assembly : Mr G R Donaldson SC

Thirteenth-named First Plaintiff : Solomon Brothers

Fourteenth-named First Plaintiff : Solomon Brothers

Seventeenth-named First Plaintiff : Solomon Brothers

Eighteenth-named First Plaintiff : Solomon Brothers

Nineteenth-named First Plaintiff : Solomon Brothers

First Defendant : State Solicitor for Western Australia

Second Defendant : State Solicitor for Western Australia

Speaker of the Legislative Assembly : Solicitor General

1 MASTER SANDERSON: This is the plaintiffs' application for preaction discovery. As it turned out it was a drama in three acts. Unlike most dramas it eventually became rather simpler at the end. But it is necessary to give some detail of each act before arriving at the relatively straightforward conclusion.

2 The plaintiffs are registered proprietors and residents of a group of apartment buildings in Burswood which is situated on the edge of the Burswood Park Golf Course. They enjoy panoramic views over the golf course, Crown Perth, the Swan River and Perth city. They are clearly concerned further development on the Burswood site will deprive them of these views. In support of the application the plaintiffs relied on an affidavit of Neil Graeme Kidd sworn 6 February 2013 and an affidavit of Lisa Maree Retallack affirmed 28 March 2013. The defendants relied on an affidavit of David Edward Leigh affirmed 14 March 2013.

3 The construction and establishment of Crown Perth (previously known as Burswood Entertainment Complex) was and its continued management is, governed by the Casino (Burswood Island) Agreement Act 1985 (WA). This Act ratified and authorised the implementation of the Casino (Burswood Island) Agreement (the Agreement). The Agreement is sch 1 to the Act. The Agreement has been amended several times. There was no disagreement between the parties as to the present relevant terms of the Agreement.

4 Pursuant to cl 6(1)(b) of the Agreement the State of Western Australia was authorised to cause an area of land defined as the 'Site' in cl 2 of Agreement to be granted to the 'Trustee' of the Burswood Property Trust. The Trustee is presently Burswood Nominees Ltd a wholly owned subsidiary of Crown Ltd. Pursuant to cl 6(1)(c) of the Agreement, the State was also authorised to cause an area of land defined as the 'Resort Site' in cl 2 of the Agreement to be created as a reserve and vested in the Burswood Park Board.

5 Development authorised by the Act and the Agreement involved two stages and was described in the 'Development Proposals' referred to in cl 2 of the Agreement. The first stage included construction of a Casino, a hotel, tennis courts, an indoor stadium, a theatre, a convention and exhibition centre, and an 18 hole golf course. The second stage was completed many years after the first stage and included construction of a second hotel. 'Stage 2' is specifically defined in cl 2 of the Agreement to mean 'the construction of the second hotel and other developments facilities and amenities referred to in the Development Proposals'. The Act and Agreement do not authorise any development subsequent to 'Stage 2' or any development not described in the 'Development Proposals'.

6 The 'Resort Site' comprises the Burswood Park Reserve which includes the golf course, the State Tennis Centre, and the land surrounding what was the Dome. The 'Site' comprises Crown Perth Casino, Crown Metropol, Crown Theatre, the Convention and Exhibit Centre and land on which the Dome at Crown was formerly located.

7 At the time this application was made the plaintiffs were aware the State had excised or proposed to excise land from the 'Resort Site' and dispose of it to Crown for the purposes of a proposed new development which included construction of a third hotel. The State also had excised or proposed to excise land from the 'Resort Site' for the purposes of the proposed new sports stadium. What the plaintiffs did not know was the mechanism by which this was done or was proposed to be done.

8 The key to all of this is cl 6(5)(a) of the Agreement. It is in the following terms:

[O]n the recommendation of the Minister cause part or parts of any land excised from the Resort Site not exceeding in the aggregate 10 hectares to be granted or leased to the Trustee on terms and conditions approved by the Minister by notice published in the Government Gazette.

9 The Agreement provides for two different methods by which land may be excised from the 'Resort Site' and granted or leased to the 'Trustee' pursuant to cl 6(5). First, pursuant to cl 6(2A)(b)(iii) of the Agreement the State is permitted to decrease the area of the 'Resort Site' with the consent of the 'Trustee' and the 'Manager'. Second, pursuant to cl 23(3)(aa) of the Agreement the State is permitted to excise from the 'Resort Site' any part or parts of the 'Resort Site' agreed to be granted to leased to the 'Trustee' under cl 6(5) of the Agreement.

10 Where land is excised pursuant to cl 23(3)(aa) the Agreement requires the following procedure to be complied with before a grant or lease of land pursuant to cl 6(5) will be effective:

(a) a recommendation must be made by the Minister to the State to grant or lease to the 'Trustee' land forming part of the 'Resort Site' that does not exceed in aggregate 10 hectares;

(b) after the State accepts the Minister's recommendation, the State may enter into an agreement with the 'Trustee' to grant or lease the land, on terms and conditions which must be approved by the Minister by notice published in the Government Gazette;

(c) excision of the land the subject of the agreement between the State and the 'Trustee' may then be effected pursuant to cl 23(3)(aa); and

(d) a formal grant or lease of the excised land on the terms and conditions which have been approved by publication in the Government Gazette may then be made pursuant to cl 6(5).

11 Where land is excised pursuant to cl 6(2A)(b)(iii) the Agreement requires the following procedure to be complied with before a grant or lease of land pursuant to cl 6(5) will be effective:

(a) consent of the 'Trustee' and the 'Manager' to the proposed excision of land from the 'Resort Site' must be obtained pursuant to cl 6(2A)(b)(iii);

(b) amendment of the boundaries of the 'Resort Site' must be then made effective by gazettal under cl 6(2B);

(c) following the gazettal of the amended boundaries of the 'Resort Site' a recommendation must then be made by the Minister to the State to grant or lease the excised land to the 'Trustee' pursuant to cl 6(5);

(d) after the State accepts the Minister's recommendation, the State must enter into an agreement with the 'Trustee' to grant or lease the land, on terms and conditions which have been approved by the Minister by notice published in the Government Gazette; and

(e) a formal grant or lease of the excised land on the terms and conditions which have been approved by the publication in the Government Gazette may then be made pursuant to cl 6(5).

12 In broad terms what the plaintiffs sought by their original application was access to documents which disclosed how the State had gone about complying with the terms of the Agreement so as to allow it to transfer land to Crown. It was the plaintiffs' position without these documents they were not in a position to make a decision as to whether or not they had cause of action. If they did have a cause of action it was based upon the State having failed to comply with the requirements of the Agreement so as to render the transfer of the property to Crown ineffective. It is unnecessary for present purposes to detail all of the documents that were originally sought. But I will quote category (G) to provide an example of the documents covered by the application:

All documents by which any land which was formerly part of the Resort Site was removed or excised from the Resort Site for the purposes of the proposed resort expansion and/or the proposed new stadium intended to be constructed by the State on land which was formerly part of the Resort Site.

13 As I have indicated above the application was supported by an affidavit of Mr Kidd. Annexed to and forming part of that affidavit were extracts from Hansard detailing answers given by certain Ministers to questions in Parliament on this issue. At the commencement of the hearing counsel for the defendant pointed out reliance upon the Hansard extracts might offend parliamentary privilege. He quite rightly indicated it was not strictly speaking his place to argue the point. He simply drew it to my attention for consideration. It was the plaintiffs' position the evidence did not call into question the answers given in Parliament and therefore there could be no question of breaching parliamentary privilege.

14 After hearing submissions from both counsel I indicated a tentative view the plaintiffs could rely on the Hansard extracts. Argument then proceeded. The further the argument went the more clear it became there was a real question as to whether or not the plaintiffs' evidence from Mr Kidd did offend parliamentary privilege. I therefore called a halt to the proceedings and advised the plaintiffs they should serve copies of the documents on the Speaker of the Legislative Assembly. If the Speaker took the view that parliamentary privilege was offended by Mr Kidd's evidence then he could appear by counsel at the resumed hearing and make submissions. Thus the matter was adjourned and the curtain came down on the first act.

15 The documents were duly served on the Speaker and at the resumed hearing the Solicitor General appeared on his behalf. He submitted the reference to Hansard in Mr Kidd's affidavit did offend the Bill of Rights of 1668. The Solicitor General's submissions were a fascinating mix of history and legal principle examining as they did the Bill of Rights as it underpins parliamentary democracy. By agreement between counsel I heard the Solicitor General's submissions and then the submissions of the plaintiffs' counsel on the issue of parliamentary privilege. Without deciding that question I then heard submissions on behalf of the plaintiffs in favour of making the order for preaction discovery and the defendants' submissions in opposition. I reserved my decision. Thus the curtain came down on the second act.

16 The third act commenced with what was effectively a denouncement. On 5 August 2013 the State Solicitor's Office wrote to the plaintiffs' solicitors enclosing copies of extracts from the Western Australian Government Gazette published 9 July 2013. Confronted with these extracts the plaintiffs' solicitors realised they now did not need most of the documents they had sought access to by their original application. They therefore asked for the matter to be relisted and filed an amended minute of revised categories of documents for discovery. During the course of his submissions counsel for the plaintiffs indicated it was no longer necessary for him to rely on any of the material in Mr Kidd's affidavit which referred to the Hansard extracts. It is therefore not necessary for me to formally determine whether or not the affidavit offended parliamentary privilege. But it is inappropriate for parts of an affidavit which have been challenged as breaching the provisions of the Bill of Rights to remain on the court record. Therefore those parts of Mr Kidd's affidavit to which objection was taken will be struck out.

17 Turning then to the Western Australian Government Gazette the plaintiffs' solicitors attention was drawn to two entries. The first is under the heading 'Casino (Burswood Island) Agreement Act 1985'. There then appears the following:

Notice of amendment to the boundary of Resort Site - clauses 6(2A) and 6(2B) of the Casino (Burswood Island) Agreement set out in schedule 1 to the Casino (Burswood Island) Agreement Act 1985 as amended.

18 The notice then goes on to say that the Minister for Racing and Gaming charged with the administration of the Casino (Burswood Island) Agreement Act 1985 has excised certain land from the 'Resort Site'. The second notice also under the Casino (Burswood Island) Agreement Act 1985 reads as follows:

Notice of amendment to the boundary of Resort Site - clauses 6(2A) and 6(2B) of the Casino (Burswood Island) Agreement set out in schedule 1 to the Casino (Burswood Island) Agreement Act 1985 as amended.

19 Once again it is said pursuant to the Act and with the consent of the 'Trustee' and 'Manager' the 'Resort Site' was amended by excising certain land. There then follows an agreement for sale of the land between the State of Western Australia and Burswood Nominees. Following that agreement there is a further 'Agreement for Sale and Development of Land'. The recitals to that second agreement are in the following terms:

(A) The State is the registered proprietor of land which is Crown land and forms part of the Reserve.

(B) Once excised from the Reserve, the Minister for Lands has the power to sell the land pursuant to section 74 of the Land Administration Act 1997 (WA) and is a signatory to this agreement.

(C) On or about 18 July 2012, subject to legal documentation being agreed by the parties, the State, among other things, agreed to the excision and sale of the land to the Buyer for the purposes of the construction and operation of the hotel and ancillary facilities on the basis that -

(i) all the land be developed within a defined period of time and not be 'land banked'; and

(ii) the land not be subdivided, strata titled or resold.

(D) As part of that agreement the State has agreed to convey the land to the Buyer pursuant to clause 6(5) of the State Agreement as an estate in fee simple and the Buyer has agreed to purchase the land for the purchase price upon and subject to the Buyer completing Stage 1 and subsequent Stages in accordance with the terms and conditions set out in this Agreement.

20 In his original submissions counsel for the plaintiffs said the plaintiffs were considering whether to commence proceedings against the defendants for the following relief:

(a) a declaration that neither Burswood Nominees nor Crown (or any related company) has any entitlement under the Agreement to acquire (whether by sale, grant or lease) any land from the State including any part of the 'Resort Site' and an injunction restraining any sale, grant or lease or proposed sale, grant or lease by the State of such land on the basis of the existence of such an agreement;

(b) a declaration that any excision of land from the 'Resort Site' for the proposed resort expansion or proposed stadium that has already occurred is unlawful and ineffective due to the defendants' failure to comply with the proper procedures;

(c) a declaration that the Minister does not have power to grant development approval (conditional or unconditional) to Crown for the proposed resort expansion and a declaration that any such approval is, or would be, beyond power and unlawful and an injunction restraining the Minister from granting any such approval if approval has not yet been granted; and

(d) a declaration that, after land is excised from the 'Resort Site' under cl 6(2A)(b)(iii) or cl 23(3)(aa) of the Agreement for the purposes of the proposed resort expansion s 7(1) and (2) of the Act do not apply to the excised land and that no development may be commenced or carried out on that land except in accordance and compliance with all applicable planning and other legislative requirements first being met.

21 Originally it was the plaintiffs' position without access to the documents listed in the application they were not in a position to make a decision. That position has changed significantly. Counsel for the plaintiffs during the course of his submissions acknowledged he could 'probably' draft a statement of claim which would contain material facts which could support some of the relief he had thought might be available. He did say however without preaction discovery he would not be in a position to particularise the statement of claim and that would have to await discovery. Counsel submitted as development was proceeding on the site and as any action by the plaintiffs would have to be taken promptly this was a case where pre-action discovery should be ordered to allow fully a particularised statement of claim to be provided and the merits of the action to be determined.

22 Against that background the plaintiffs sought by their amended minute of revised categories of documents for discovery the following documents (the marking up has been omitted):

(a) All documents containing or recording or referring to any recommendation made by the Minister for Racing and Gaming to the State to grant the land the subject of the Agreement for Sale and Development of Land dated 21 January 2013 between Burswood Nominees Ltd as trustee for the Burswood Property Trust of Crown Perth ('Crown') and the State and the Minister for Lands ('21 January 2013 Agreement') to Crown pursuant to clause 6(5) of the Casino (Burswood Island) Agreement ('Casino Agreement').

(b) All documents containing or recording or referring to any consent or consents given by the Trustee and Manager (as defined in clause 2 of the Casino Agreement) under clause 6(2A)(b)(iii) of the Casino Agreement to any removal or excision of land from the 'Resort Site' (as defined to in clause 2 of the Casino Agreement) for the purposes of the proposed expansion of the resort the subject of the Casino Agreement which is referred to in the 21 January 2013 Agreement ('Proposed Resort Expansion').

(c) All documents containing or recording or referring to or made pursuant to or in consequence of the preliminary agreement made between Crown and the State on or about 18 July 2012 ('the 18 July 2012 Agreement') which is referred to in Recital C to the 21 January 2013 Agreement.

(d) All documents comprising or referring to any drafts of, or negotiations leading up to the making of:-

(e) All documents comprising or referring to any exercise or proposed exercise of the power conferred on the Minister for Lands to sell land to Crown pursuant to s.74 of the Land Administration Act 1974 (WA) ('LAA') for the purposes of the Proposed Resort Expansion.

(f) All documents comprising or referring to the Minister for Lands granting or purporting to grant or proposing to grant or purportedly grant land to Crown pursuant to clause 6(5) of the Casino Agreement for the purposes of the Proposed Resort Expansion.

(g) All documents containing or comprising or recording or referring to the development approval or approvals granted or issued, or proposed to be granted or issued, by the Minister for Racing and Gaming to Crown (and/or any legal entities related to Crown) in respect of or concerning the Proposed Resort Expansion, including without limitation the approval dated on or about 29 July 2013 referred to in the State Solicitor's Office's letter to Solomon Brothers dated 5 August 2013 (annexure 'LMR1' to Ms Retallack's affidavit of 8 August 2013) and the approval referred to in the Minister for Racing and Gaming's letter to Mr Jeff McCann, undated but send on or about 31 January 2013 (annexure 'NGK3' to Mr Kidd's affidavit of 06/02/13).

23 The principles covering O 26A r 4 of the Rules of the Supreme Court 1971 (WA) were not in dispute. The conditions necessary to justify an order are:

(1) the applicant wants to take proceedings against a potential party;

(3) the applicant has not been able to obtain sufficient information to enable a decision to be made as to whether to commence or take the proceedings; and

(4) there are reasonable grounds for believing that the potential party has, had or is likely to have had, or to have possession of documents that may assist in making the decision whether to take the proceedings.

See Hancock Family Memorial Foundation Ltd v Fieldhouse [No 2] [2008] WASC 147.

24 Here the question is whether or not the plaintiffs are now in possession of sufficient information to allow them to make a decision as to whether to take action. The defendants say they are. The plaintiffs say they are close but were discovery to be provided of the documents sought a fully informed decision could be made and when action was commenced a fully particularised statement of claim could be filed.

25 This is a slightly unusual situation. On balance I am satisfied it can be concluded that the plaintiffs have not been able to obtain sufficient information to enable a decision to be made as to whether to commence proceedings. True it is the plaintiffs now seem to have an understanding of the process pursuant to which the property has been transferred to Crown. But they still do not know the precise mechanism by which that was done. They are contemplating action which has significant ramifications both for them and for the State. It is in the interests of justice and the interests of the parties the plaintiffs make a fully informed decision. Accordingly I am satisfied discovery ought be ordered. In reaching that conclusion I am satisfied the plaintiffs may have cause of action against the defendants. Certainly this is not a case where the plaintiffs' position is hopeless and no encouragement to a pointless action should be given. Reasonable inquiries have been made and it is clear the defendants are in possession of documents which may assist. All the necessary conditions have then been satisfied.

26 Having said all of that I am not satisfied making an order in the terms proposed by the plaintiffs is justified. In my view what is sought is just too wide. The mischief is in the use of the word 'referring' in each paragraph. Apart from a lack of precision the scope of the discovery is too wide. Take by way of example the documents referred to in par (a). It is reasonable to seek discovery of 'all documents containing or recording any recommendation made by the Minister for Racing and Gaming to the State to grant the land the subject of the Agreement for Sale and Development of Land'. But it is difficult to see why documents 'referring' to any such recommendations are necessary for the plaintiffs to make a decision about whether or not to proceed.

27 Accordingly I would be prepared to make orders substantially in terms of the amended minute of revised categories of documents for discovery, omitting in each paragraph the phrase 'or referring'. I will give the parties the opportunity to make submissions as to the precise form of orders. There was a significant dispute between the parties as to the adequacy of conferral in this case. The plaintiffs maintained the defendants had not adequately conferred and had they done so the application in its original form would not have been made. The proper course is for each party within seven days to file submissions in relation to costs.