Ground 8
67 The applicant alleges that the primary judge erred in concluding that discovery should not be ordered because none of the documents sought were amongst the documents said to be before the Minister and, therefore, were not taken into account in the making of the decision. The applicant particularises this ground of appeal as follows:
a. While as a general principle in common law judicial review of an administrative decision is confined to the reasons provided and the declared documents, it is also common law that there may be exceptional circumstances in which further documents may be discovered and produced;
b. The documents sought to be discovered had been repeatedly referred to the Minister as being pertinent to the issues raised by the applicant and were on the same footing as the information the applicant provided, albeit not yet with the benefit of the appellant's analysis which would require discovery;
c. In the present matter ADJR Act 1977 s13 reasons were sought and not provided.
68 In Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 Weinberg J stated at [442]:
Ordinarily, there would be no reason, in a case involving judicial review, for any evidence to be placed before the court, apart from evidence of what was before the decision-maker at the time of the relevant decision.
However, the touchstone of admissibility is relevance to the specific grounds of review and the facts of the case: Chandra v Webber (2010) 187 FCR 31 at [40] (Bromberg J); Attorney-General (NT) v Minister for Aboriginal Affairs at 539-40.
69 The ordinary rule against receiving extrinsic evidence is a consequence of the nature of the Court's jurisdiction and role in conducting judicial review of an administrative decision. Whether or not there is an error of law is ordinarily discerned from the reasons of the decision-maker, which are based on the material before that decision-maker. The question before the primary judge hearing the substantive application for judicial review is rarely whether the Minister would have come to a different conclusion if he or she had considered different evidence. This is why additional material is not usually relevant in determining whether the decision-maker erred in law: see Waterford v Commonwealth (1987) 163 CLR 54 at 77-78 (Brennan J).
70 There are some exceptions. For example, material that was not before the decision-maker may be relevant to a ground of unreasonableness where the decision-maker has not obtained material that was obviously centrally relevant to the decision and was readily available: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 (Wilcox J).
71 It was common ground between the parties before the primary judge that none of the documents sought to be discovered by the applicant were before the Minister. It is on that basis, together with the applicant's failure to demonstrate the direct relevance of the additional documents sought, that the primary judge declined to order discovery under r 20.14.
72 With respect to particular (a), the applicant asserts that his case falls within an exception to the general rule. These exceptions require demonstration of the relevance of the documents to the specific grounds of review. The applicant's written submissions fail to address the issue of how the documents he seeks are directly relevant, or even indirectly relevant, to his grounds of review. Having regard to the submissions, the application for judicial review and the applicant's affidavits in support of his grounds, I can see no error in the primary judge's reasons on this point.
73 For these reasons, particular (b), which argues that the documents that were not before the Minister are "on the same footing" as the documents before the Minister, must also be rejected.
74 With respect to particular (c), the applicant argues that where no formal statement of reasons is provided, the ordinary rule against the reception of extrinsic evidence does not apply. The applicant cites Moreland City Council v Minister for Planning [2014] VSC 468 where it was held that, in that case, the provision of reasons for a decision weighed against the making of any order for discovery. The provision of reasons may be relevant to the exercise of the Court's discretion to order discovery, but the question of whether to order discovery remains within the sole discretion of the Court: Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257 at 265 (Bowen CJ, Lockhart and Sheppard JJ); Australian Securities Commission v Somerville (1994) 51 FCR 38 at 48-49 (Black CJ, Ryan and Olney JJ).
75 Where no reasons are provided, it is permissible to look behind the decision to the material before the decision-maker in an attempt to discern the reasons for the decision: East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605 at [312] (Ashley and Redlich JJA). However, the fundamental difficulty for the applicant is his inability to demonstrate how documents not before the Minister might be directly relevant, or even relevant at all, to the grounds of his application for review. Pointing to the absence of reasons does not overcome this difficulty.