28 Assuming that the Court has power to allow interrogatories to be administered to a decision maker unprotected by immunity (the questions which arise where it is sought to administer interrogatories to a statutory tribunal may be different) the question of principle to be decided here may be stated to be whether interrogatories may be administered in respect of an issue fundamental to and ultimately the basis on which judicial review is said to be based, where the matter to which the interrogatories goes is one that depends solely upon assertion and nothing else.
29 It will be recalled that Wilcox J took as the appropriate principle to apply in the present case either what was said in Canwest by the full Court of this Court or what was said by Brennan J in Bannerman. Notwithstanding the reference in his Honour's judgment to there being in the present case "available snippets of information" it seems clear that his Honour regarded the appropriate test to be either one of allegation or one of "suspicion".
30 It can be said, generally, that the test of Brennan J in Bannerman has usually been adopted as the appropriate test in determining whether discovery should be granted in matters of judicial review. However, it is necessary to set out the whole of what was said by Brennan J in the passage cited by his Honour. At 181-182 Brennan J said:
"Though the power to require discovery be acknowledged, how should it be exercised? It depends upon the nature of the case and the stage of the proceedings at which the discovery is sought. In the present case, discovery is sought before there is a tittle of evidence to suggest that the Chairman did not have the requisite cause to believe which par. 6 of the statement of claim would put in issue. Some assistance was sought to be derived from cases where discovery had been given to a party before he was required to give particulars of his claim … but in cases of that kind there is either an anterior relationship between the parties which entitles one to obtain information from the other, or sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery. This is not such a case. This is a case where a bare allegation is made by par. 6 of the statement of claim and, the paragraph being denied, the applicant seeks to interrogate the Chairman and ransack his documents in the hope of making a case. That is mere fishing. As Smithers J said in Melbourne Home of Ford Pty Ltd v Trade Practices Commission and Bannerman: 'In the absence of such evidence the proceeding is essentially speculative in nature. In such circumstances for the court to assist the applicants by making available to them the processes of interrogatories and discovery would be to assist them in an essentially fishing exercise and from this the court on established principles should refrain.'"
31 Subject to matters to which we refer later it can be said that the present is clearly a case where there is not a "tittle" of evidence to suggest that the Minister made his decision for an ulterior purpose. The allegation of ulterior purpose to be found in ground (c) set out at [8] above is said by Mr Wong to justify the grant of leave to administer the interrogatories. There is no more than a bare assertion that there was any ulterior purpose. The present is not a case in which discovery is sought before action where, as Brennan J remarked, there may already be documentation available to an applicant. The present is merely a case where a "bare allegation" of a matter that is integral to the case for judicial review is made and no more.
32 It is clear from Bannerman that a mere allegation, in the absence of something more, would not suffice to require discovery and it may be said here interrogatories. In fact the case concerned both interrogatories and discovery and did not suggest any difference in principle between the two. What that something more is will depend on the particular circumstances of the case. In some cases (the present is not one) there may be evidence upon which it is open to conclude that the matter into which enquiry is sought may be made out so that discovery or interrogatories may be appropriate. In other cases it may be possible by reference to known facts to draw inferences which then found a suspicion. But mere suspicion not "grounded" on evidence or inference will not suffice.
33 It may be remarked here that cases which have concerned discovery in judicial review have, at least in part, been influenced to adopt a liberal view on discovery by the fact that the rules of the Court now permit discovery before action (cf Order 15A, rule 6). That rule requires, however, that the person seeking discovery before action show that there is reasonable cause to believe that the applicant has, or may have the right to obtain relief. That limitation reflects the policy that while discovery may be ordered even before proceedings have commenced the power to do so will only be enlivened where that is something upon which the Court can base its conclusion that the applicant may have a right to relief. It was for this reason that in Canwest Global Communications Corp v Australian Broadcasting Authority (Hill J, 16 June 1997, unreported) at first instance, Hill J drew a distinction between the case where discovery was sought in an attempt to determine whether there was a case to be made out under some head of judicial review and the case where discovery is sought to show that the case which has by then been formulated can in fact be made out. The full Court refused leave to appeal. However, in the course of the reasons their Honours pointed out that the question whether interrogatories are appropriate will depend, as Brennan J had said in Bannerman, both upon the particular circumstances of the case and the stage at which discovery is sought. Their Honours said:
"Where in a case properly before the Court, a case that cannot be dismissed as an abuse of process, the pleading raise an issue for decision to which a party's documents may be relevant, the Court will have a discretion to order discovery. The need to establish a basis for the suspicion described by Brennan J in WA Pines will generally be confined to the kind of case to which he was adverting. In the normal case, the pleading will adequately ground the order."
34 However, their Honours noted that the pleadings in Canwest and other material before the Court provided grounds for an inference sufficient to satisfy the test stated by Brennan J in WA Pines. In other words, the case was not one where a mere allegation, without a "tittle of evidence", was all that could be relied upon.
35 In our opinion the present case is one where more than a mere allegation would be required before interrogatories of the kind here sought to be administered could properly be ordered. The additional matter may rest in evidence; it may rest in inferences that might be drawn from the evidence, or inferences that may be raised from other material, including matters that have been pleaded. But there will be a need here at least to ground an inference that an extraneous matter was taken into account and more significantly, that the Minister had an ulterior purpose, before it would be appropriate to order interrogatories to be administered.
36 His Honour appears to have been of the opinion that there was, at least something more than mere assertion in the present case. Unfortunately, and this is not a criticism of his Honour who was required to deliver judgment urgently having regard to the tight time frames applicable, his Honour did not indicate what the available "snippets of information" were that he relied upon. However, apart from one matter to which our attention was drawn, counsel for the applicant was unable to refer us to anything in the correspondence or otherwise (there were no pleadings in a traditional sense) to which he could point to supplement what, on any view, was a mere assertion.
37 The one matter to which we were referred was a paragraph 11 of a document prepared for the Minister by the Department and before the Minister at the time of the consideration of the first decision. That paragraph reads relevantly:
"There is also a view that the 'national interest' may include Australia's 'reputation' and 'good name in the world'. It is certainly reasonable to conclude that Australia's international reputation and good standing would be damaged if it provided, or was seen to provide, a safe haven for people who have committed serious crimes in another country and seek to evade that country's law enforcement action. Given Mr Wong's record in evading law enforcement activities, and that Australia's international reputation and good name is paramount, you may find that it is in the national interest that action be taken quickly to prevent him disappearing into the community before his case is dealt with. It is therefore, open for you to be satisfied, based on the protected information, that it is in the national interest to refuse Mr Wong's visa application under subsection 501(3)."
38 It is difficult to see how that provides any foundation at all for a suggestion that the Minister in making the second decision took into account any extraneous matter or exercised his discretion for an ulterior purpose, namely for the purpose of returning the Applicant to Hong Kong so as to permit foreign law enforcement authorities to pursue their enquiries.
39 As Mr Wong, by his legal representative, had made representations in accordance with the invitation given to him, the first issue relevant to the second decision was whether he had satisfied the Minister that he passed the character test. It is unnecessary on this appeal for a decision to be reached as to whether, assuming that the Minister was satisfied that Mr Wong passed the character test, the Minister nonetheless had a discretion not to revoke the original decision, cf Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106. The paragraph set out in [37] above has no relevance to Mr Wong's character. Mr Wong had claimed to have had no problem with the police while in Australia. That may be so, although it is not conclusive of the question of his character. The Department, in its advice to the Minister suggests that it was open to the Minister to revoke the first decision, that is to say, that it was open to the Minister to form the view Mr Wong was of good character. However, nothing in the representations made to the Minister or otherwise contained in the departmental advice provided to the Minister was compelling on the issue of Mr Wong's character. Nothing in the paragraph set out in [37] above suggests that the Minister exercised his power for an ulterior purpose as alleged. Nor for that matter is there any suggestion of any extraneous purpose to be found in the departmental advice.
40 Other matters to which counsel for Mr Wong referred were the fact that there was a delay of some 13 months from the date of the application to renew the student visa until the making of the first decision. That is completely neutral and says nothing either as to ulterior motive or extraneous reason.
41 Finally it is submitted that consideration should be given to a handwritten endorsement on inter-departmental communications as follows: "do we think it reasonable to harbour all alleged crim's so they don't get their day in court". There is a difficulty with this endorsement in that it is far from clear that it was before the Minister at the time he made the first decision. But even if it were, it bears not at all on either the question of extraneous matters or the question of ulterior purpose.
42 Ultimately counsel for Mr Wong was forced to concede that the application to administer interrogatories rested entirely upon the allegation of ulterior purpose which the applicant made and had, otherwise, no foundation. In these circumstances and given this concession, properly made, we are of the view that the case was not one where the primary Judge could properly exercise the discretionary power to order the administration of interrogatories.
43 In these circumstances we are of the view that leave to appeal should be granted and that the appeal should accordingly be allowed and that the orders made by the learned primary Judge should be set aside and in lieu thereof it be ordered that the application for leave to administer interrogatories be refused. Mr Wong should pay the costs of the appeal and the costs of the application before the primary Judge.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justices Hill, Moore and Branson.