Owners Corporation Plan No RP 015268 v Yarra City Council

1 This is an appeal pursuant to s 17(3) of the Supreme Court Act 1986 and r 77.06 of the Supreme Court (General Civil Procedure Rules) 2015 (Rules) to a Judge in the Trial Division from a decision of an Associate Judge refusing to order discovery in a judicial review proceeding.[1]

2 What are the principles that govern an appeal of this kind, and has the appellant met the requirements for success? In particular, what approach is required where discovery is sought to advance a claim of apparent bias and denial of a fair hearing generated from reliance by the Council on advice by members of Council staff and by communications between staff and residents involved in a dispute with other residents related to the subject matter of the advice?

3 In the substantive proceeding, the plaintiffs seek to quash a declaration of 'public highways' made by the defendant (Council) under s 204(1) of the Local Government Act 1989 (LGA). The impugned declaration extends to an area at the rear of the plaintiffs' land over which the plaintiffs intend to claim adverse possession. The plaintiffs advance a number of grounds of invalidity of the Council's impugned declaration. The grounds relevantly include allegations that the Council denied the plaintiffs procedural fairness by withholding certain documents in the possession of members of Council staff, and on the basis that a fair-minded bystander might think that the Council might not have been impartial in deciding whether to make the declaration.

4 The plaintiffs applied for an order by the learned Associate Judge of the kind permitted by rr 29.07(2) and (3) of the Rules for discovery of particular documents and categories of documents. They argued the documents would advance their claims of denial of procedural fairness. The Associate Judge was not satisfied of this and disallowed the application.

5 Demonstrating appellable error in the exercise of a discretion on a matter of practice and procedure like this is relatively difficult. The appeal does not turn on my preference as to how the discretion should have been exercised, but depends on the presence of a vitiating factor of the kind identified in House v The King.[2] The Court will exercise particular caution in reviewing such a decision.[3]

6 The plaintiffs have not demonstrated any material error or any other proper basis for overturning her Honour's decision. I will dismiss the appeal and hear the parties on costs.

7 The facts relating to this appeal are summarised in the reasons for judgment below.[4] I will not refer to all aspects of the facts summarised by her Honour, but have gone into more detail on some of the key documents, events and legislative provisions to provide context for the particular issues that are raised on the appeal.

B.1. Factual background to the first proceeding

8 There is a bluestone laneway near the rear of the plaintiffs' property in George Street, Fitzroy called Sandeman Place. Sandeman Place runs north-south from Charles Street. At its southern end it abuts land that is not included in any folio of the Register maintained by the Registrar of Titles under the Transfer of Land Act 1958. Land of this kind is referred to as 'NUA' ('not under the Act') land or 'hiatus' land.

9 Many years ago, the plaintiffs, or family members who were predecessors in title, concreted an area in a roughly rectangular shape traversing about 5.5 metres of the eastern boundary of their title and protruding a little over 1.7 metres into the hiatus land. The plaintiffs claim that this concreted area was used exclusively by their family and their guests to park cars for many years. The plaintiffs claim that they are entitled to claim the concreted area protruding into the hiatus land by adverse possession. A few years ago they erected a wall and sliding gate running north-south for about 5.5 metres across the hiatus land, enclosing the area they wish to claim and separating it from the remainder of the hiatus land.

10 It appears, from documents I refer to below, that a dispute developed between the plaintiffs and others wishing to use Sandeman Place. It appears that the owners of properties with certain addresses on Webb Street Fitzroy also drive cars along Sandeman Place. These owners came to be referred to in documents prepared for the Council as the Webb Street owners. Communications of some kind appear to have occurred between them and members of Council staff after the plaintiffs erected their wall and sliding gate over the hiatus land. It will be necessary to refer in more detail to what is known of these communications later in these reasons.

11 It appears, from a reference in a document I refer to in detail below, that there was a meeting of the Council on 4 May 2021 relating in some way to Sandeman Place. For the purposes of the appeal, I was not told anything about this meeting, and no party placed any record of it into evidence. The appeal book provided to me for the appeal contained a number of affidavits post-dating the hearing of the summons before the Associate Judge on 17 May 2023. I was not asked to receive any of these affidavits into evidence for the appeal. It appears that one of those affidavits exhibits minutes of the Council's meeting on 4 May 2021 and a subsequent meeting (in July) rescinding the resolution of the Council made at the 4 May meeting. However, I will not take these minutes into account for the purposes of the appeal. The evidence that was admitted for the purpose of the appeal[5] did not include any direct description of these events in May and July 2021. However, it may be inferred from evidence that was relied on in the appeal that there had, in May 2021, been an earlier proposal for the declaration of a public highway over land abutting Sandeman Place. I return to this point later in these reasons.

12 On 3 September 2021, the Council published a notice that it proposed to declare two parcels of land abutting Sandeman Place Fitzroy to be public highways pursuant to LGA s 204(1) and inviting submissions pursuant to LGA s 223 from any person by 1 October 2021, giving contact details for George Vass at the Council for that purpose. The notice stated that any such person was entitled to request in their submission that they be heard at a meeting of the Council, and if they did so, they would be notified of the time and place of the meeting. The notice of proposed declaration related to the following two parcels of land, described in two diagrams forming part of the notice:

(a) about 22 square metres constituting hiatus land abutting Sandeman Place (the hiatus land); and

(b) a small, 0.4 square metre, piece of land (the triangular land) nearby that is part of the common property on a title owned by some (at least) of the Webb Street owners.

13 There was a gate providing access for the Webb Street owners (or some of them) into the hiatus land and Sandeman Place. The Webb Street owners' gate was very close to the wall and sliding gate erected by the plaintiffs across the hiatus land. There was also another property abutting at the south end of the hiatus land between the plaintiffs' property and this gate, but it is unclear whether this was part of the Webb Street owners' property or properties. The area was cramped. The wall and gate erected by the plaintiffs would make it difficult or impossible for a car reversing out of the Webb Street owners' gate to manoeuvre itself into a forward-facing position for the drive northwards out of Sandeman Place.

14 The following aerial photo, taken in May 2021, shows the cramped area at the southern end of Sandeman Place, including (in the centre) the hiatus land, (in the centre-left) the wall and sliding gate erected by the plaintiffs, and (in the centre-right) the gate providing access to the Webb Street owners' property:

15 On 1 October 2021, the plaintiffs' solicitors made a submission opposing the proposed declaration and seeking to be heard at a meeting of the Council. It appears that the Council failed to notify them of any such meeting.

16 On 17 March 2022, the Council caused a notice of public highway declaration to be published in the Victorian Government Gazette under s 204 of the LGA (the Council's first declaration) purportedly declaring public highways over both parcels of land.

17 Section 204(1) of the LGA provided relevantly that a Council may, by notice published in the Government Gazette, declare a 'road' in its municipal district to be a 'public highway' for the purposes of the LGA. Section 3(1) of the LGA provided that in the LGA 'road' includes 'a right of way'. This Court has previously decided, in the context of s 204, that 'right of way' includes both private and public rights of way.[6]

18 Section 223(1) of the LGA applied 'if a person is given a right to make a submission to the Council under this section (whether under this or any other Act)'. Under s 207A of the LGA, s 223 applied to a proposed exercise of power under s 204(1).

19 The provisions of s 223(1) relevantly required the Council to publish a notice 'specifying the matter in respect of which the right to make a submission applies', giving prescribed details of the matter, setting a deadline for any submission, and including a statement that the person was 'entitled to request in the submission that the person wishes to appear ... at a meeting to be heard in support of the submission'. If the person made a request, the Council was required to provide them with 'the opportunity to be heard in support of the submission in accordance with the request at a meeting of the Council ...' and to arrange the meeting on notice to the person. The Council was required to consider such submissions and notify the person of the decision, giving reasons.

Despite section 98, a Council may authorise the appropriate members of Council staff to carry out administrative procedures necessary to enable the Council to carry out its functions under this section.

21 At the time this case arose, s 98 of the LGA was no longer in force, having been repealed on 1 May 2020 by the Local Government Act 2020 (LGA 2020), s 360(c). Before 1 May 2020, s 98(1)(e) of the LGA provided that a Council 'may by instrument of delegation delegate to a member of its staff any power, duty or function of a Council under this Act or any other Act other than ... any power, duty or function of the Council under section 223'.[7]

22 As far as I can see, there is at present no such express exclusion under the new LGA 2020 of Councils' ability to delegate functions under LGA s 223 to members of Council staff, although an inability to delegate to staff may be implied in some aspects of s 223 itself (such as the requirement to consider submissions), and there is scope for the prescription of such an exclusion by regulation. Under the LGA 2020, s 11 provides for delegation of powers, duties and functions of a Council to the Chief Executive Officer of the Council subject to certain exclusions (which do not refer to s 223 of the LGA), and additional exclusions can be prescribed by regulation. Section 47(1) in turn empowers the Chief Executive Officer to delegate such powers, duties and functions to members of Council staff.

23 Both the Chief Executive Officer and Council staff are distinct from the Council. The Council is a body corporate constituted by the Councillors as elected from time to time.[8] With the exception of the Chief Executive Officer, all other Council staff are appointed by the Chief Executive Officer under s 48 of the LGA 2020. The Chief Executive Officer is appointed by the Council.[9] The members of Council staff are appointed to enable the functions of the Council under the LGA 2020 (or any other Act, which would of course include the LGA), to be performed, and to enable the Chief Executive Officer's functions to be performed.[10]

24 On 9 May 2022, the plaintiffs commenced a proceeding in this Court seeking that the Council's first declaration be quashed. On 24 June 2022, orders were made by consent quashing the Council's first declaration.

B.3. Factual background to the current proceeding

25 On 11 October 2022, the Council's solicitors wrote to the plaintiffs' solicitors indicating that the Council intended to 'revisit the statutory process it commenced last year'. The letter referred to the public notice the Council gave inviting submissions under s 223 of the LGA and to the plaintiffs' solicitors' submission dated 1 October 2021. The letter stated that the Council would meet on 25 October 2022, and extended an invitation to the plaintiffs' solicitors to attend the meeting and speak.

26 On 20 October 2022, the plaintiffs' solicitors wrote to a member of Council staff, Ivan Gilbert, confirming that they would attend the meeting and requesting materials.

27 Later that day, Mr Gilbert wrote to the plaintiffs' solicitors providing a link to the Council meeting agenda, including a report and three attachments to be presented at the meeting.

28 The three attachments to the agenda for the Council's meeting on 25 October 2022 were: the submission in the form of a letter dated 1 October 2021 by the plaintiffs' solicitors regarding the proposal that led to the Council's first declaration; a document described in the list of attachments in the agenda as 'Submission by Greg Rodwell', which was an email to George Vass, dated 28 September 2021, but with the sender's name redacted and omitting any antecedent chain of emails;[11] and a six-page report to the Council dated 7 December 2021 prepared by Mr Gilbert, itself enclosing three attachments.

29 The first of the three attachments to Mr Gilbert's report was the public notice dated 3 September 2021 that was published in the lead up to the making of the Council's first declaration. The second was a seven-page memorandum on City of Yarra letterhead dated 11 May 2021 setting out information in response to a request for 'engineering comment' by the 'Engineering Referral team', including various diagrams and photos, from Mark Pisani to George Vass, cc'ing Diane Gabriel and Danny Millican. I infer that all these people are members of Council staff. Some of the information relates to analysis of access requirements of a 'B99'-size vehicle to the rear of the properties abutting the hiatus land. The third was a single page setting out two diagrams, one showing details of the hiatus land abutting the plaintiffs' land and the other the triangular land on the Webb Street owners' land.

30 The substantive content of the attachment to the agenda for the Council's meeting on 25 October 2022 described as 'submission by Greg Rodwell' and dated 28 September 2021 was as follows (the Rodwell Email):

Hi George,

We received a letter from you dated 14 September 2021 re 'Notice of Statutory Process to declare part of Sandeman Place Fitzroy a Public Highway'. I was a little confused and surprise (sic) to see this given the communication we have received from you (in the email chain below) specifically where you stated on 13th of May 2021:

"Immediately following Council's meeting of 4 May 2021, we provided a copy of Council's resolution to Council's legal representative with an instruction to gazette the NUA land a public highway.

The gazettal notice was already prepared.

On the question of enforcing Sandeman Place a PH, I also briefed our Compliance Team of Council's declaration and sought advice as to whether Council should act on the resolution alone or wait for gazettal and it was agreed that we wait for gazettal.

I should have an update today re timing but it is simply an administrative but important step.

I have also now received a report from Council's engineers that support the importance of the 0.4 sq.m triangle that forms part of the separate statutory process that Council is ready to commence.

The report includes diagrams that show the position of the triangle, the 2.45 metre diagonal restriction previously highlighted and most importantly the sweep path necessary for reasonable vehicular access. The sweep path shown is for a B99 vehicle which includes an ambulance or small truck that would not be able to get through the Sandeman place restriction if the triangle is not part of Sandeman Place."

I have spoken to Stephen Jolly about this today, he advised that Council did not follow the correct process and that is why now the process is starting again. What I am struggling to understand is why now, with no further consultation, you are listing the 0.4sq.m triangle as part of this process when you specifically stated that it would be part of a separate process? I am also struggling to understand the need for this 0.4sq.m triangle, the report you refer to doesn't identify if the B99 vehicle has sufficient width to enter 75-77 Webb St, especially considering this is the only access to Tony's home - where as a B99 can access 73 Webb St and George St from Webb St and George St respectively. At the Council meeting you argued the triangle would increase access by over 2m - whereas it only increases it by 23cm. This seems really misleading.

From someone who works for Local Government I find this whole process slightly unbelievable and concerning. From our initial interaction with you where you proposed options to give the NUA land to those parties that are unlawfully staking a claim to it, to the numerous communications you have made (as evidenced by the statement above) where you provide advice and a commitment and then not follow through on this. We then find out that the process is starting again because the Council did not follow the correct process, it really questions my trust in Council and the Officers undertaking this process. It almost feels like it might have been a convenient mistake...

If you could please provide clarity on my questions above and provide some sense of assurity to the process and our rights as rate paying residents that would be greatly appreciated.

31 The passage quoted in the Rodwell Email from an email of 13 May 2021 refers to a meeting of the Council on 4 May 2021. I take judicial notice that generally records of meetings of Councils are publicly available. Neither the plaintiffs nor the Council took me to any direct record of that meeting on the appeal. Based on the reference to this meeting in the Rodwell Email, it is evident that there had been a resolution at that meeting about the 'NUA' or hiatus land.

32 On 25 October 2022, during the foreshadowed meeting of the Council on that day, Robert McKay of the plaintiffs' solicitors and a person named Tony Douglas addressed the Council on the matter. I infer from a reference to Mr Douglas in a later meeting agenda, referred to below, that Mr Douglas was one of the Webb Street owners. On 25 October 2022, the Council resolved, in identical terms to a recommendation made to the Council by staff, as follows:

1. That Council note what is said in the written submissions of:

(a) Best Hooper dated 1 October 2021 (on behalf of Owners Corporation Plan No. RP015268 and the owners of Units 1-4, 174-178 George Street, Fitzroy[)]; and

(b) one of the co-owners of 75-79 Webb Street, Fitzroy, dated 29 (sic.; scil., 28) September 2021,

and what has been said in support of those submissions.

2. That Council consider those submissions and what has been said in support of those submissions, and any further Officer Report, at its meeting on 15 November 2022.

33 On 14 November 2022, the plaintiffs' solicitors wrote to the Council making further submissions for the purpose of Council's meeting on 15 November 2022.

34 The Council's agenda materials for the 15 November 2022 meeting included item 8.4, again prepared by Mr Gilbert, regarding the proposal for a public highway declaration over the hiatus land and triangular land abutting Sandeman Place. The following passages are taken from item 8.4 at [2.3]-[2.4] (which appear under the heading '2. Factual background'), at [4.8] (which appears under the heading '4. Public consultation'), and at [5.2.1] (which appears under the heading '5. Consideration of Submissions and Review of Relevant Issues'):

2.3 In March 2020, the lot owners of 75-79 Webb Street (Webb St Owners) sought assistance from Council because the lot owners of 174-178 George Street (George St Owners)[12] erected a fence and steel gates that extended through, and enclosed a significant portion of, the Hiatus Parcel (2020 Fence). The Webb St Owners assert that the 2020 Fence substantially interferes with their ability to execute turning movements into and out of the common property at 75-79 Webb Street so that they can exit Sandeman Place with vehicles in a forward direction...

2.4 Council officers are satisfied that the Hiatus Parcel was historically used to accommodate vehicular and pedestrian traffic from both 174-178 George Street and 75-79 Webb Street, Fitzroy, from at least 2009 until the erection of the 2020 Fence and, in all likelihood, far longer. On this basis, Council officers are satisfied that the Hiatus Parcel is a 'right of way' within the meaning of the Act and, therefore, constitutes a 'road' within the broad meaning specified in the Act, in respect of which Council is entitled to consider making a declaration pursuant to section 204(1) of the Act. Officers note, however, that the George St Owners assert that part of the Hiatus Parcel has been continuously and exclusively possessed by them, the implication being that it is not a 'road' for the purposes of the Act.

...

4.8 At its meeting on 25 October 2022 Council heard from each of the submitters.

4.8.1 The legal representative of the George St Owners reiterated that: (a) the George St Owners assert that they have enjoyed the exclusive use of the Hiatus Parcel for in excess of 40 years; and (b) there would be no real purpose served by the proposed declaration, since anyone exiting 75-79 Webb Street along Sandeman Place would inevitably need to traverse part of the privately owned land comprising 174-178 George Street, to which there is no legal right of access.

4.8.2 A representative of the Webb St Owners maintained that: (a) for a period of approximately 37 years, the Hiatus Parcel had been used to access the rear of 75-79 Webb Street. In other words, what was said by the legal representative of the George St Owners about exclusive use was disputed; and (b) it is possible to use only the Subject Land to reverse out of 75-79 Webb Street, without traversing any part of the privately owned land comprising 174-178 George Street.

...

5.2.1 Adverse possession / ownership claim

(a) The Opposed Parcel is 'hiatus land' and does not have a title or registered proprietor.

(b) If they made an adverse possession claim the onus would be on the George St Owners to prove that they are entitled to be registered as owner of the fee simple estate in the Opposed Parcel based on the doctrine of adverse possession. This would require the George St Owners to prove that they accrued at least 15 years of continuous and exclusive possession of the Opposed Parcel, to the exclusion of all others, prior to the Opposed Parcel becoming a road. Once the Opposed Parcel became a road, the George St Owners would need to show 30 years of continuous and exclusive possession to obtain a legal title free from the road status.

(c) The George St Owners assert that their rights of adverse possession derive from them having demarked the Opposed Parcel from the publicly accessible areas of Sandeman Place, by concreting the Opposed Parcel as a parking area which has been exclusively possessed and used by the George St Owners.

(d) Aerial images of the Subject Land obtained by Council show that, prior to erection of the 2020 Fence, the Opposed Parcel was openly accessible to third parties via Sandeman Place (refer Attachment 2). This evidence appears to contradict the George St Owners' claims that the Opposed Parcel was in the exclusive possession of the George St Owners for any period longer than approximately 20 months.

(e) The Webb St Owners maintain that they (and their predecessors) have been accessing and using the Opposed Parcel for at least 35 years prior to erection of the 2020 Fence, for the purpose of vehicle movements and using that land for access between Sandeman Place and the common property at the rear of 75-79 Webb Street. This evidence contradicts the George St Owners' claims that they have been in exclusive and continuous possession of the Opposed Parcel, to the exclusion of all others, for any period longer than approximately 20 months.

(f) Although it is not free from doubt, the evidence provided and available to Council indicates that the George St Owners have not accrued rights of adverse possession over the Opposed Parcel and, therefore, are not the legal owners of the Opposed Parcel.

35 Item 8.4 also enclosed five attachments, one of which was an updated engineering memorandum from Danny Millican to Ivan Gilbert, bearing the date 4 November '2021', which I infer should have been '2022'. This memorandum came to be referred to in the plaintiffs' originating motion for judicial review in this proceeding as the Second Traffic Engineers Report. It included the following:

36 Item 8.4 of the meeting agenda for the meeting on 15 November 2022 came to be referred to in next agenda paper as the Officer Report. Discussion of item 8.4 was adjourned to 6 December 2022.

37 Item 8.4 of the meeting agenda for 6 December 2022 attached the Officer Report, including the Second Traffic Engineer Report, and the plaintiffs' solicitors' letter of 14 November 2022. Item 8.4 included the following at [25]:

25. Officers continue to hold the opinion that the Hiatus Parcel at the southern end of Sandeman Place, Fitzroy can and should be declared as a public highway. Nothing in the Best Hooper Letter has caused them to reverse the Recommendation contained in the Officer Report. Ultimately, of course, the matter is one for Council to determine.

38 At the meeting, the Council resolved to declare public highways over the hiatus land abutting Sandeman Place and the triangular land, authorising the publishing of a notice in the gazette making the declaration impugned in this proceeding, and notifying submitters in writing of its decisions and reasons for the decision.

39 Unlike the case of the agenda and documents for the Council's meeting on 25 October 2022 (for which a link was provided in an email from Mr Gilbert on 20 October 2022 on request from the plaintiffs' solicitors), there was no evidence before me that the plaintiffs were specifically given links to the agendas and documents for the meetings on either 15 November or 6 December 2022. However, I was informed during the hearing that the agendas and documents for those meetings were publicly available. There is no evidence before me that the plaintiffs asked for links for the agendas and documents of those meetings. There is no evidence that the plaintiffs complained to the Council about any withholding from them of any material relating to deliberations of Council scheduled to take place on either 15 November or 6 December 2022.

40 On 15 December 2022, the Council caused the declaration that is challenged in this proceeding to be made by publication of a notice under s 204(1) of the LGA in the Victorian Government Gazette.

41 On 16 December 2022, the Council sent the plaintiffs' solicitors a letter referring to the Council resolution on 6 December 2022 and giving the reasons for decision. The letter included the material before the Council at the meeting. The reasons for decision adopted relevant passages of the Officer Report, including paragraph 5.2.1(e) and (f).

42 On 13 February 2023, the plaintiffs commenced this proceeding for judicial review. Later in these reasons, I set out some extracts from the plaintiffs' originating motion for judicial review in this proceeding. In that document, the Council's first declaration is referred to as the 'First Purported Declaration, and the impugned declaration challenged in this proceeding is referred to as the 'Second Purported Declaration'.

43 The plaintiffs contend that they were entitled to some of the hiatus land that was declared as a public highway under the principles of adverse possession, and they claim that the declaration is 'void' because it was affected by denial of procedural fairness, by failure to have regard to mandatory considerations, and by the absence of one or more jurisdictional facts essential to the valid exercise of power under s 204(1) of the LGA.

44 The application for discovery related only to the denial of procedural fairness claims. I will treat the claims relating to mandatory considerations and jurisdictional facts as irrelevant to the determination of the appeal.

45 The judicial review proceeding is currently listed for trial on 5 March 2024, with an estimate of one to two days, and for a directions hearing on 28 February 2024.[13]

46 The judicial review proceeding was commenced by originating motion. There is no discovery in such a proceeding except by order of the Court.[14]

47 At a directions hearing before Ierodiaconou AsJ on 8 March 2023, the plaintiffs mentioned their intention to seek discovery, and her Honour made directions timetabling any such application to be made by 17 March 2023. This meant that the plaintiffs made their discovery application before the Council had put on its evidence.[15]

48 By summons filed on 20 March 2023, the plaintiffs sought discovery of particular documents and categories of documents from the Council. To the extent the summons remains relevant to this appeal, the summons sought the following:

(a) at [1(a)] of the summons: 'A full copy of the letter ... to Greg Rodwell ... dated 14 September 2021 ...': as will be recalled, early in the Rodwell Email, Mr Rodwell referred to such a letter, stating, 'We received a letter from you dated 14 September 2021 re "Notice of Statutory Process to declare part of Sandeman Place Fitzroy a Public Highway"';

(b) at [1(b)] of the summons: 'A full copy of the email from [George] Vass to [Greg] Rodwell dated 13 May 2021 ...': this is a reference to the source email purportedly quoted at length in italics in the Rodwell Email;

(c) at [1(c)] of the summons: 'Any document recording or referring to the conversation between the counsellor Stephen Jolly and [Greg] Rodwell on 28 September 2021 ...': the Rodwell Email refers to such a conversation, stating, 'I have spoken to Stephen Jolly about this today, he advised that Council did not follow the correct process and that is why now the process is starting again';

(d) At [1(g)] of the summons: 'The "chain" of emails referred to in the Rodwell Email': the reference to this appears directly in between the reference to the letter dated 14 September 2021 and the long quotation from an email dated 13 May 2021, and states, 'I was a little confused and surprise (sic) to see this given the communication we have received from you (in the email chain below) specifically where you stated on 13th of May 2021 ...';

(e) At [1(i)] of the summons: 'The documents comprising the "evidence provided and available to Council" indicating that the plaintiffs had not accrued adverse possession rights, as referred to at paragraph 5.2.1(f) of the agenda of 15 November 2022 ...': this paragraph is extracted above together with contextual passages of the agenda; and

(f) At [1(j)] of the summons: 'The documents comprising the "evidence" of the Webb Street Owners' vehicle movements referred to at paragraph 5.2.1(e) of the agenda of 15 November 2022 ...': again, this paragraph is extracted above together with contextual passages of the agenda.

49 The plaintiffs made submissions to her Honour identifying the applicable general principles.[16] They contended that the central allegation in the proceeding was that the Council engaged in communications with witnesses who had a partisan interest in the matters at stake and whose interests were contrary to those of the plaintiffs, that the evidence was of critical relevance in the Council's pathway of reasoning, that the plaintiffs and their lawyers were not given a proper opportunity to respond prior to the decision being made, and that the limited portions of this evidence that had been disclosed suggest that the Council had prejudged the matter. The plaintiffs argued that they had produced sufficient evidence that such undisclosed communications had occurred, and that they were important to the ultimate decision. They sought discovery of further documents pursuant to the summons to understand the full extent and nature of these communications.[17] They characterised the Rodwell Email and the agenda for the 15 November 2022 meeting (that is, the Officer Report), as 'the two critical documents already disclosed by Council as being relevant to the decision‑making process', and contended that those 'two fundamental documents simply cannot be understood without the disclosure of the identified documents referred to therein.'[18]

50 The Council opposed the application on the basis that (1) the Council recorded reasons for its decision and published the papers tabled for its consideration, (2) the natural justice claim did not meet the threshold requirements for discovery in a judicial review proceeding beyond the materials already available to the court and the reasons in the Council's resolution, (3) the plaintiffs had failed to demonstrate how discovery would aid proof of their case, and (4) the timing of the application appeared to be premature.[19]

51 Ierodiaconou AsJ set out the principles applicable to an application for discovery in judicial review matters.[20] In the course of doing so, Ierodiaconou AsJ set out applicable legislative and delegated legislative provisions including the Civil Procedure Act 2010 ss 9(1), 54, 55(1) and (2) and the Supreme Court (General Civil Procedure) Rules 2015 rr 29.01(1), 29.07(2) and (3).

52 No party suggested that there was any error in her Honour's summary of the applicable principles.[21] I adopt and reiterate these principles as identified by her Honour.

53 The principles applicable to discovery applications in judicial review matters were summarised by Ginnane J in Australian Society for Kangaroos. His Honour explained that:

Discovery is often not ordered in judicial review proceedings because the documents evidencing the decision under review are usually before the court including a statement of reasons. But discovery can be ordered if the plaintiff has a good, or at least arguable, case proof of which would be aided by discovery. However, that is subject to any countervailing or discretionary factors, including the nature of the case and the time at which the application is made. It is sometimes said that the same discovery rules that apply in civil cases also apply in judicial review cases. But, in judicial review cases, while any discovery request will be assessed by reference to the issues raised, usually the primary focus will be on the documents that were before the decision-maker and which will have been provided to the plaintiff and be before the court.[22]

One way of stating the test that a plaintiff in a judicial review proceeding must satisfy to obtain discovery of documents that were not before the decision-maker is: 'whether there is evidence to ground a suspicion that the applicant has a good case, proof of which is likely to be aided by discovery'.[23]

55 His Honour cited with approval the statement of Brennan J in W.A. Pines Pty Ltd v Bannerman as to the appropriate test in determining whether discovery should be granted in judicial review matters:

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 [the error had occurred]. 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 ... 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 ... and, ... being denied, the applicant seeks to interrogate the [other party] 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: "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."[24]

56 Similarly, Daly AsJ in Moreland City Council described the threshold test for the Court to exercise its power to order discovery in judicial review cases as 'whether the applicant has a good, or at least an arguable case, proof of which would be aided by discovery, subject to any countervailing authority or discretionary factors'.[25] Her Honour's distillation of the key principles included that: discovery in judicial review cases will not be ordered in the usual case, but may be ordered where the applicant has a good case, proof of which would be aided by discovery; discovery may be ordered to assist the court in fulfilling a fact-finding role; where reasonableness of the decision is in question, discovery may be ordered in respect of the documents before the relevant decision-maker; the fact that a decision-maker has provided reasons for the relevant decision may influence the court to exercise its discretion against ordering discovery; and the making of a mere assertion in the originating process is insufficient to persuade a court to exercise its discretion to order discovery.

57 Ierodiaconou AsJ also referred to the Court of Appeal's enumeration in Mackenzie v Head, Transport for Victoria[26] of the categories of evidence that may be admissible in a judicial review proceeding beyond the evidence that was before the primary decision‑maker. That list does not include a category for evidence that might establish that the decision-maker denied an affected person procedural fairness. However, the Court of Appeal did not state that the list was intended to be exhaustive. Whether such evidence is admissible depends on the grounds concerned and the probative value of the evidence in establishing those grounds.[27] This includes evidence that could establish a denial of procedural fairness even if it was not before the decision-maker at the time of the decision.[28]

58 Ierodiaconou AsJ disallowed the plaintiffs' application for discovery in its entirety. Her Honour set out the analysis and conclusions supporting her decision at [66]-[87] of the primary judgment. As will be seen, some aspects of her Honour's reasoning evaluated the merits of parts of the substantive claim, and found them wanting. Thus, before turning to this passage of the primary judgment, it is necessary to identify some of the arguments in the plaintiffs' originating motion for judicial review in some detail.

59 The grounds of the originating motion are unusually detailed, running to 50 paragraphs over 24 pages. Although this deprives the reader of a quick summary of the case, it makes it easier to evaluate the merits of the case on a level that would usually have to await a trial. An evaluation of that kind is called for here, by the test identified in Australian Society for Kangaroos. The grounds relied upon in support of the discovery application are at [33]-‍[36] and run to five pages, not counting cross-references to several more pages' worth of earlier text. I have had regard to the entirety of this passage and the cross‑referenced text. I will not attempt to summarise all the arguments developed in this passage; nor quote it all, but will set out extracts from it that articulate the arguments that emerged as significant to the discovery application and provide necessary context:

Procedural fairness - hearing

33.The procedure adopted by the defendant to make the Second Purported Declaration was unjust, and failed to afford the plaintiffs a fair hearing, because:

...

(b) ordinarily, rights of the nature in issue would be determined by a court in accordance with law, and on the receipt of detailed evidence from each party that can be assessed and challenged by the opposing party;

...

PARTICULARS

... The defendant had been approached by the Webb Street Owners (or one of them) and had decided to initiate an investigation of the matter. The defendant's officers apparently communicated with the Webb Street Owners (or some of them), but did not communicate with the plaintiffs concerning the proposed declaration. These matters were apparently investigated from some time in 2020 until about mid-2021. ... the plaintiffs were not included in investigations associated with the proposed declaration. ...

(d) when the defendant's officers were investigating and deciding the key questions of fact, they failed to inform the plaintiffs of the nature and detail of the evidence that the defendant's officers were gathering against them, and failed to investigate both sides of the case;

PARTICULARS

Notwithstanding that the key conclusions underpinning the First Purported Declaration and Second Purported Declaration were seemingly made by the defendant's officers by mid-2021, the nature of the supporting evidence was never put to the plaintiffs at this time. ... None of these questions could be assessed without the defendant's officers putting to the plaintiffs the detail of the evidence they were relying on from the Webb Street Owners, in order to allow that evidence to be responded to and contradicted.

(e) the defendant's officers engaged directly in communications with one of the two sides to the dispute (being the Webb Street Owners) as to the merits of the matter, and gave them assurances that the matters would be resolved in their favour, without the knowledge or involvement of the plaintiffs;

PARTICULARS

... The content of the Rodwell Email suggests that at least one of the Webb Street Owners had been engaged in extensive communications with the defendant's officers with conduct of the matter well prior even to the First Purported Declaration. The email suggests that the defendant's officer had assured Mr Rodwell that the highway declaration would be passed, and that this decision had been the subject of a substantial number of earlier correspondences. ...

(f) the defendant decided the matter at the council meeting on 7 December 2021 without giving the plaintiffs the opportunity to make submissions, and in contravention of s.223(1)(a) of the Local Government Act 1989 (Vic);

(g) after the decision was quashed, the defendant then recommenced the process for the declaration of the Proposed Highway Land without further investigation of the merits, and on the basis of the evidence already produced in connection with the First Purported Decision;

PARTICULARS

... The documents proffered by the defendant's officers for the councillor's consideration were almost entirely re-hashed from the earlier proceedings pertaining to the First Purported Decision. ...

(h) ... an oral hearing was convened in connection with the Second Purported Declaration ...

...

(i) the defendant then received a submission and/or evidence from a person (Mr Douglas) ...

...

(j) after the hearing was completed, and after it became clear that the plaintiffs disputed that the proposed declaration would produce a viable turning circle to ensure egress via Sandeman Place without any trespass within the Plaintiffs' Land (or that the declaration was otherwise necessary to ensure such egress) the defendant's officers procured the Second Traffic Engineer Report for consideration by the councillors;

...

34. By reason of the matters stated above in paragraph 33, the plaintiffs were denied procedural fairness, and the Second Purported Declaration was accordingly void.

Procedural fairness - partiality

35. Further or alternatively, by reason of the matters stated above in paragraph 33, a fair-minded lay observer might reasonably apprehend that the defendant might not have brought an impartial mind to the resolution of the matter.

...

60 Ierodiaconou AsJ held the Council was required to accord procedural fairness to those affected by the proposed exercise of power under s 204(1).[29] Her Honour said that the statutory framework 'imports the minimum requirements of the fair hearing rule', but was not 'a curial process', giving detailed reasons and citing applicable authorities.[30] Her Honour recorded agreement by the parties that the process was not a curial one.[31] Her Honour addressed[32] the principles that apply to evaluations of allegations of prejudgment of councillors in detail.[33] The plaintiffs have not disputed any aspect of this summary of the applicable principles. Her Honour's statement of the principles is undoubtably correct. The process the Council and its staff was engaged upon in relation to the proposed declaration of public highways markedly diverged from the 'judicial paradigm'.[34]

61 Her Honour's analysis addressed each of the categories of documents sought in the summons in turn, commencing with [1(a)], the letter from Mr Vass to Mr Rodwell dated 14 September 2021, referred to in the Rodwell Email.

62 Her Honour identified the allegations in paragraphs 33(c), (d), (e) and (g), and (to the extent that they overlap) paragraphs 34 and 35 of the originating motion as being the potentially relevant aspects of the plaintiffs' case.[35] Her Honour considered each in turn, and concluded that the plaintiffs did not have an arguable natural justice case, insofar as these parts of the originating motion relied upon undisclosed communications between officers of the Council and the Webb Street owners.[36] In this regard, her Honour considered that those officers did not constitute the defendant Council and were not the decision-maker, and that the undisclosed communications were not before the decision-maker when it resolved to make the declaration.[37] Her Honour also noted a timing issue - the undisclosed communications were in the period leading up to the quashed declaration, and did not arise in the period between the quashing of the declaration made in 2021 and the making of the impugned declaration.[38]

63 Further, her Honour concluded that, even if the plaintiffs had an arguable natural justice case in respect of paragraphs 33(c), (d), (e) and (g) or paragraphs 34 and 35 of the originating motion, the letter sought in the plaintiffs' summons could not aid the plaintiffs' case for nine reasons. First, the letter was not before Council when it made the impugned decision. Second, the impugned decision was made by resolution of the Councillors of the defendant, not by officers of the defendant. Third, the reasons provided by the defendant for its decision did not rely on the letter. Fourth, the letter, given its date, can only have related to the quashed declaration. Fifth, the letter cannot prove partiality by the decision-maker, as it was written by an officer of the defendant, not the decision-maker. Sixth, the material before the decision-maker was referred to in the Council agenda papers and resolution, and is therefore not unknown to the plaintiffs. Seventh, the plaintiffs' submission that the letter evidences communications that were ultimately part of the defendant's decision to make the declaration is at odds with the Council's reasons for its decision, as recorded in its resolution. Eighth, her Honour rejected the plaintiffs' submission that the letter is discoverable by reason of a factual dispute to be determined about property rights. Ninth, her Honour rejected the plaintiffs' submission that the natural justice case is inherently factual as it relies upon the defendant's undisclosed communications with the Webb Street owners and that the letter is therefore discoverable.[39]

64 Her Honour held that precisely the same analysis applied to the document sought by [1(b)] of the plaintiffs' summons, namely the full email of 13 May 2021 which is the source of the quoted text in the Rodwell Email.[40]

65 Her Honour next addressed the category sought by the summons at [1(c)], namely a record of the conversation between Mr Rodwell and Councillor Jolly referred to in the Rodwell Email. Her Honour held that the same analysis as for category [1(a)] applied (save that this was not an outgoing document but a conversation with a Councillor), and that there were additional reasons for dismissing the application for this category: there was no evidence that the Councillor was 'doing anything other than his job as a Councillor'; as an individual Councillor he was 'not the decision-maker'; there was no suggestion his role was determinative; and he was 'part of a body of decision-makers'.[41]

66 The next category that is the subject of the appeal is the category sought in the summons at [1(g)], the chain of emails preceding the Rodwell Email. Her Honour held that the same analysis applied as for category [1(a)] of the summons (save that the chain was not merely an outgoing email).[42]

67 Her Honour addressed the remaining aspects of the summons relevant to this appeal, [1(i)] and [1(j)], evidence referred to in the agenda of 15 November 2022, by holding that the same analysis applied as for [1(a)], save that they were not restricted to an outgoing email.

68 In their notice of appeal dated 22 June 2023, the plaintiffs contend that her Honour erred in declining to grant the plaintiffs' application of discovery of the documents referred to at [1(a)-(c)], [1(g)], [1(i)] and [1(j)] of the summons. The plaintiffs' case on appeal impugning her Honour's reasoning was set out in detail in the notice of appeal, and was further developed in 15 pages of written submissions, and oral submissions at the hearing of the appeal on 17 October 2023.

69 Not all aspects of the notice of appeal were developed in the plaintiffs' submissions. Using my own language and not attempting to capture every nuance in the plaintiffs' submission, the key steps in the plaintiffs' argument that her Honour erred are as follows.

(a) First, the Council was reliant on the Officer Report[43] in making the impugned declaration. The Council did not conduct its own investigation and its reasons for decision were substantially the same as recommended in the Officer Report.[44]

(b) Second, the Officer Report was based on information collected by members of Council staff from the Webb Street owners (in 2020-2021 before the quashing of the Council's first declaration), the 'nature and content', 'details and source' or 'source and content' of which were not disclosed to the plaintiffs and which were generic and only referred to and adopted 'compendiously'.[45]

(c) Third, officers (members of Council staff) communicated with the Webb Street owners in a partial or apparently partial manner, not sharing information from the Webb Street owners with the plaintiffs, and perhaps making assurances to the Webb Street owners that might (depending on their terms) show they prejudged issues in the matter against the interests of the plaintiffs and in favour of the Webb Street owners.[46]

(d) Fourth, because of the reliance by the Council on the Officer Report (including the lack of any other investigation and the adoption of contents of its recommended findings):

(i) any breach of the hearing rule by the members of Council staff in compiling the Officer Report is either imputed to the Council, or else is a factor vitiating the decision-making process, so as to affect the impugned declaration;[47] and

(ii) any breach of the (apparent) bias rule because of apparent partiality by members of Council staff to the Webb Street owners would vitiate the Council's decision to make the impugned declaration.[48]

(e) Fifth, fairness required the disclosure of the 'source and content' or 'nature and content' of the undisclosed communications between the Webb Street owners and the members of Council staff underlying the recommended findings in the Officer Report, so the plaintiffs could test and respond to them,[49] as those communications informed factual findings on disputed property rights,[50] even though:

(i) that detailed information was not before the Council itself;[51] and

(ii) the timing of the communications was that they occurred in the lead up to the Council's first declaration and not in the lead up to the impugned declaration - because no further investigation occurred and the findings from the earlier investigation were recycled.[52]

(f) Sixth, the reasoning supporting refusal of discovery relating to Councillor Jolly's conversation with Mr Rodwell is inconsistent with other parts of the reasoning;[53]

(g) Seventh, her Honour must have misunderstood the applicable principles as to there being a sufficiently arguable case;[54] and

(h) Eighth, her Honour erroneously imposed a test requiring that a document be 'necessary' before discovery would be ordered.[55]

70 An appeal from a decision of an Associate Judge to a Judge in the Trial Division is an appeal by way of rehearing which, in the absence of further evidence or a change in the law, ordinarily requires the appellant to show error on the part of the Associate Judge before appellate power may be exercised.[56] It is not a rehearing de novo.[57] On such an appeal, the Judge has all the powers of the Associate Judge who heard the matter at first instance.[58] The Judge hearing the appeal has the power to give any judgment or make any order that ought to have been given or made, and make any further or other order as the case may require.[59] However, generally speaking, the task on such an appeal is the correction of error.[60]

71 As noted in the introduction to these reasons, the Judge hearing an appeal of this kind involving a discretionary decision on a matter of practice and procedure should be cautious in overturning the primary decision, and should only do so if a vitiating factor of the kind referred to in House v The King[61] has occurred. It must appear that some error has been made in the exercise of the discretion. That is, the primary tribunal must have acted upon a wrong principle,[62] allowed extraneous or irrelevant matters to guide or affect it, not taken into account some material consideration,[63] have mistaken the facts,[64] or have reached a conclusion that is so unreasonable or plainly unjust such that it may be inferred that there has been a failure to properly exercise the relevant discretion. This latter kind of error does not require absolute precision or certainty in identifying the exact error.[65]

72 The Court on appeal must be satisfied that the decision is outside the limits of 'sound discretionary judgment' before intervening.[66] There is a strong presumption in favour of the correctness of a discretionary decision, which should only be overturned it is 'clearly' or 'plainly' wrong.[67]

73 The plaintiffs did not contest her Honour's statement of the principles applicable to discovery in judicial review proceedings, noting that her Honour correctly identified that an applicant must have 'a good, or at least arguable, case proof of which would be aided by discovery'.[68]

74 However, the plaintiffs submitted that there was no basis for her Honour to conclude that the plaintiffs did not have a sufficiently arguable case such that the test could be satisfied. The plaintiffs contended that it must be inferred that her Honour misapplied the test and erred in her analysis and conclusions as to its application to the facts at hand.

75 The Council argued that the plaintiffs had not established a requisite error in her Honour's application of the principles of discovery in judicial review proceedings, and that the appeal therefore ought to be dismissed.[69]

76 I discern no error in Ierodiaconou AsJ's identification of the relevant principles, or any material error of fact, or misidentification of the relevant issues. Applying the principles in House v The King as I am required, I would only allow the appeal if I were able to identify a material error in her reasoning, or if I were persuaded that the outcome reached by her Honour was such that I could infer an error must have occurred.

77 Taking each of the eight key arguments I have distilled from the plaintiffs' arguments on the appeal,[70] with one exception, I am not satisfied that any of the reasoning expressed by her Honour was in error or incomplete.

78 The only exception relates to the plaintiffs' fourth argument, identified at paragraph 69(d)(ii) above. The exception is that, in my respectful opinion, her Honour erred if she was suggesting at [75] that the distinction between an officer of the Council and the Council itself would be a complete answer to a claim of apprehended bias. In my view, the leading High Court authority on this general topic, Hot Holdings Pty L[71] v Creasy,71 leaves scope for a claim of this kind to succeed, depending on issues such as the basis for the apprehension and extent of involvement of the officer concerned in preparing a recommendation adopted by the decision-maker. I informed the parties of the potential relevance of Hot Holdings during the hearing of the appeal. It appears that the plaintiffs did not raise Hot Holdings for her Honour's attention, or any other decided case setting out the principles of procedural fairness applicable to their originating motion.

79 As will be clear from what follows, any deficiency in her Honour's reasoning on this point had no material impact on the outcome. Further, the outcome was not such as would support an inference on appeal that some unidentified error must have occurred.

80 Taking each of the key arguments advanced by the plaintiffs in turn, my conclusions are as follows.

81 First, the plaintiffs argued that the Council was reliant on the Officer Report in making the impugned declaration. This is correct, but does not mean that her Honour was incorrect in drawing a distinction between the decision-making entity (the Council) and the preparers of the Officer Report. As already outlined, members of Council staff are not to be equated to the Council itself. However, a decision-making process involving the making of recommendations by advisers complicates the application of the procedural fairness bias rule, so more analysis is needed. In Hot Holdings, the High Court considered the application of the principles of the bias rule in the context where it was suggested that grounds existed for apprehension of bias in advisers rather than the decision-maker personally. Although there will be no automatic imputation of bias from advisers to decision-makers, all the relevant circumstances must be considered, including the basis on which apparent bias is claimed to arise and the particular role played in the preparation of the advice by the particular advisers about whom the grounds are said to arise.[72]

82 Second, the plaintiffs argued that the Officer Report was based on information collected by members of Council staff from the Webb Street owners before the quashing of the Council's first declaration, the details of which were not disclosed to the plaintiffs. This contention ignores the information contributed to the process by Tony Douglas at the Council's meeting on 25 October 2022. References in the Officer Report to the evidence provided by the Webb Street owners can, from that meeting onward, be reasonably regarded as encompassing Mr Douglas's representations. Further and more importantly, the statutory submission and hearing process was not a curial process. In those circumstances, in my view, there is no real prospect at trial of the Court concluding that the provision of detailed records of the communications to members of Council staff about use of the hiatus land by people with interests opposing the plaintiffs was required to be disclosed to the plaintiffs by the hearing rule of procedural fairness.[73] As Merkel J said in Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs:[74]

The overriding principle is that the decision-maker must bring to the applicant's attention the critical issue or factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it... . It is sufficient that the gravamen or substance of the issue or factor is brought to the applicant's attention, or that the applicant is on notice of its "essential features"...

83 At trial, the issue the plaintiffs will face is whether they can persuade the Court that they were deprived of any opportunity to understand the essential features of the information about prior usage of the hiatus land that might be relied upon by the Council in making the proposed declaration. They were not entitled to any more than that.

84 Third, the plaintiffs contend that unidentified members of Council staff communicated with the Webb Street owners in a partial or apparently partial manner, not sharing information from the Webb Street owners with the plaintiffs, and apparently making assurances to the Webb Street owners that might (depending on their terms) show they prejudged issues in the matter against the interests of the plaintiffs and in favour of the Webb Street owners. As already mentioned, there was no requirement for detailed information to be shared - all that the hearing rule required was that the essential features of that information be made available to the plaintiffs to allow them to respond at some point before the making of the proposed declaration. The suggestion of partiality on the part of members of Council staff is a more difficult issue. As mentioned above with reference to Hot Holdings, if the staff in question had an instrumental role in advising the Council, there could be an arguable case that the resulting declaration was vitiated, depending on the basis for suspecting they might have been biased. What is the source of the suggestion that the staff were apparently biased? It appears to be the extract from Mr Vass's 13 May 2021 email reproduced in the Rodwell Email, together with the reference later in the Rodwell Email to a 'commitment'. As already noted, her Honour may have erred if she considered the distinction between officers and the Council a complete answer to an apprehended bias claim on the part of the Council. The assessment of such a claim depends on matters such as whether there is evidence of apparent bias in the staff, and (if so) which staff, and whether they had an instrumental role in preparing the Officer Report. I will return to this point later in these reasons, addressing the potential implications of this issue for each category of discovery.

85 Fourth, the plaintiffs argue that, because of the reliance by the Council on the Officer Report, any breach of the hearing rule by the members of Council staff in compiling it, and any breach of the bias rule because of apparent partiality to the Webb Street owners, would vitiate the Council's decision to make the impugned declaration. The case for breach of the hearing rule will depend only on whether notice was given of the essential features of the information that was adverse to the plaintiffs' interests, and they were not entitled to more detail than that. I repeat my earlier references to Hot Holdings as to the circumstances that would have to be considered at trial in order to evaluate the claim of breach of the (apprehended) bias rule.

86 Fifth, the plaintiffs argue that fairness required the disclosure of the 'source and content' or 'nature and content' of the undisclosed communications between the Webb Street owners and the members of Council staff underlying the recommended findings in the Officer Report. The plaintiffs argue that they had the right to test and respond to these details, as those communications informed factual findings on disputed property rights, even though that detailed information was not before the Council itself. This is so, they argue, even though the communications in question occurred in the lead up to the Council's first declaration, because the findings were 'recycled' for the purpose of the making of the impugned declaration. In my view, these submissions overstate the requirements of the hearing rule limb of procedural fairness in the case - this was not a curial process. As already mentioned, I do not consider that the plaintiffs have an arguable case for access to these details of the adverse information relied upon by members of Council staff; they are only entitled to its essential features, or its 'substance and gravamen'. Further, and in any event, following the quashing of the Council's first declaration, the information about the Webb Street owners' claims of prior usage of the hiatus land to which the plaintiffs had access included the claims made by Mr Douglas at the Council meeting on 25 October 2022.

87 Sixth, the plaintiffs contend that her Honour's reasoning supporting refusal of discovery relating to Councillor Jolly's conversation with Mr Rodwell is inconsistent with other parts of the reasoning. I do not agree with the plaintiffs on this point. A conversation on the part of one member of the Webb Street owners, with one Councillor, and (on the basis of the known information) on an entirely anodyne point, is of no significance to the procedural fairness claims. The reference in the Rodwell Email to this conversation does not raise a reasonable suspicion of partiality, but simply describes a conversation of the kind that Councillors have regularly with their constituents.

88 Seventh, the plaintiffs argue that her Honour must have misunderstood the applicable principles as to there being a sufficiently arguable case. There is no basis for this contention.

89 Eighth, the plaintiffs argue that her Honour erroneously imposed a test requiring that a document be 'necessary' before discovery would be ordered. I disagree with this contention. Her Honour correctly stated the test for discovery earlier in the primary judgment, at some length. The references to 'necessary' later in her reasons for judgment, while perhaps a little infelicitous, were simply a short-hand way of invoking those principles.

90 Turning now to each of the categories that are in dispute on the appeal, my conclusions are as follows.

91 As mentioned at paragraphs 61 to 63 above, at [67]-[79] of the primary judgment, her Honour addressed the document at [1(a)] of the summons: 'A full copy of the letter ... to Greg Rodwell ... dated 14 September 2021 ...'. Her Honour then incorporated the reasoning in this passage into the reasoning in relation to other categories of the summons.

92 First, I will address the potential role of the letter to Mr Rodwell by reference to the hearing rule.

93 I refer to paragraphs 82-83 and 86 above. The hearing rule did not require the records of the communications between the Webb Street owners and the staff who prepared the Officer Report to be disclosed to the plaintiffs. The Council did not rely on those records - only on the summary of their substance and gravamen distilled in the Officer Report. But even if the Council had done so, this would not constitute a breach of the hearing rule, provided the substance and gravamen of the issues adverse to the plaintiffs' interests were available to the plaintiffs and the plaintiffs had an opportunity to be heard on them. For this reason, I respectfully agree with the conclusion reached by her Honour in the primary judgment at [69]: the plaintiffs' procedural fairness (hearing rule) case could not be materially assisted by communications between the staff and the Webb Street owners, including the letter to Greg Rodwell. The letter to Greg Rodwell is also unable to assist that argument because it emanated from the staff and did not contain communications from the Webb Street owners.

94 Further and in any event, I agree with her Honour that the letter could not aid the plaintiffs' claim of breach of the hearing rule for reasons that are substantially similar to each of the first, second, third, fourth, sixth, seventh, eighth and ninth reasons given by her Honour in the primary judgment at [70]-[74] and [76], for the reasons I will now outline. The letter is incapable of affecting the key question for trial on the hearing rule claim, which will involve an evaluation of whether the Webb Street owners had notice of the substance and gravamen of the prior usage of the hiatus land claimed by the Webb Street owners prior to the making of the impugned declaration and an opportunity to respond to this. The letter was not before the Council for the purposes of making the impugned declaration; the decision was made by the Council, not the officer who wrote the letter; the reasons for decision of the Council did not rely on the letter; the letter was clearly some sort of notification to the Webb Street owners of the process for the proposal that led to the Council's first declaration, so the potential for it to have any relevance whatsoever to the impugned declaration is even more remote; the letter was an outgoing message from Council staff to the Webb Street owners, so cannot be probative of any claim as to the state of the plaintiffs' knowledge of the substance and gravamen of the Webb Street owners' claims. For all these reasons, the letter does not even come close to meeting the Australian Society for Kangaroos test for discoverability, which requires that there is a good arguable case that would be assisted by the letter.

95 Next, I will address the potential role of the letter in relation to the bias rule.

96 I refer to paragraphs 78 and 84 above. As already mentioned, I respectfully disagree with her Honour's reasons to the extent that her Honour suggested or held that apparent bias by an officer could not lead to the claim for denial of procedural fairness in the making of the Council's impugned declaration succeeding. Her Honour's observation in the primary judgment at [75] that the letter (being written by an officer) could not prove partiality by the Council is correct as far as it goes, but Hot Holdings shows that it may be necessary to consider the theoretical possibility that the process of decision-making was affected by the appearance of bias, even if the Council was not. I consider that there is at least the theoretical possibility that any appearance of bias on the part of a member of Council staff who was instrumental in preparing a recommendation adopted by the Council could lead to the resulting decision of the Council being set aside.

97 But is there any basis for thinking that the letter dated 14 September 2021 (or any of the other documents sought by the plaintiff) would assist in the proof of such a claim? No. There is no sign in the available evidence that the letter of 14 September 2021 was anything other than a notification of a process for deliberation leading to the purported making of Council's first declaration. For this reason, just as in the case of the hearing rule claim, there is no basis for concluding that the letter meets the Australian Society for Kangaroos test in relation to the bias rule, either.

98 Her Honour adopted the same analysis for the document sought in [1(b)] of the summons: 'A full copy of the email from [George] Vass to [Greg] Rodwell dated 13 May 2021 ...'. I infer that the body of this email is reproduced in the Rodwell Email in any event, probably omitting some text at its beginning and end. Is there any basis for thinking that the remainder of the source email could assist either the hearing rule or bias rule case advanced by the plaintiffs? I think not.

99 My conclusion on the hearing rule case is easily explained. This was, again, an outgoing message from Council staff, and so will not have conveyed information adverse to the plaintiffs' interests from the Webb Street owners. Also, to the extent that the source email is not reproduced, it was not before the Council for the purposes of making the impugned declaration in any event.

100 My conclusion on the bias rule case is more complicated, because I consider that there is a theoretical possibility that the appearance of bias in a member of staff could vitiate the outcome, in the manner I have already explained. The Rodwell Email itself contains a paragraph stating that a commitment of some kind had been made:

From someone who works for Local Government I find this whole process slightly unbelievable and concerning. From our initial interaction with you where you proposed options to give the NUA land to those parties that are unlawfully staking a claim to it, to the numerous communications you have made (as evidenced by the statement above) where you provide advice and a commitment and then not follow through on this. We then find out that the process is starting again because the Council did not follow the correct process, it really questions my trust in Council and the Officers undertaking this process. It almost feels like it might have been a convenient mistake ...

101 The commitment in question can only be discerned from the italicised text higher up in the Rodwell Email, taken from the Council staff email of 13 May 2021, beginning with the underlined text 'I should have an update today re timing'. It is tolerably clear that the supposed commitment was to gazettal of a declaration relating to the hiatus land at a time to be advised following a meeting of the Council that had already taken place on 4 May 2021, and to a subsequent separate process for the making of a declaration relating to the triangular land. Evidently, Mr Rodwell was dissatisfied that this separate approach to the hiatus land and triangular land declarations had been abandoned at some point prior to 28 September 2021. None of this has any obvious relevance to a claim that the process leading to the making of the impugned declaration in December 2022 might have been affected by the appearance that the Council (or the process of decision-making) might not have been impartial. Assuming that the commitment just described was made by Mr Vass in May 2021, there is no logical connection to a case for apprehension of bias in the form of prejudgment of the preparation of the Officer Report or making of the impugned declaration in 2022. It was a commitment that related to a procedural matter that arose in May 2021, was abandoned by September 2021, and that no longer had any relevance in 2022. It is fanciful to suggest that a commitment on procedural matters of that kind, long since abandoned, would have the potential to create an appearance that either the officers involved in preparing the Officer Report, or the Council, might not be impartial on the substantive matters for decision, long after a new procedural approach had been adopted.

102 Her Honour next addressed, at primary judgment [80], the category at [1(c)] of the summons: 'Any document recording or referring to the conversation between the Councillor Stephen Jolly and Mr [Greg] Rodwell on 28 September 2021 ...'. Her Honour adopted the same analysis, save that she acknowledged that this conversation was not simply an outgoing communication from the Council or its staff. It was a two-way conversation between a Webb Street owner and a Councillor who later participated in the making of the impugned declaration. I refer to paragraph 87 above. The only indication in the evidence of the subject matter of the conversation is that it was entirely anodyne, being an exchange about a procedural matter. There is no basis for thinking that it went further, or that any substantive information was conveyed to Councillor Jolly that was adverse to the interests of the plaintiffs. Further, as her Honour had earlier noted when citing Winky Pop, the role of Councillors involves interactions with constituents, and the mere occurrence of such communications will not per se result in findings of apprehended bias on the part of the Councillor concerned. Further, even if the Councillor was so affected, her Honour explained that the applicable principles (explained earlier and drawn from McGovern) would require that Councillor's role to have been determinative. There is no suggestion that Councillor Jolly's role was determinative. I find no error in her Honour's conclusion that the discovery sought in summons at [1(c)] be disallowed.

103 At primary judgment [85], her Honour addressed [1(g)] of the summons: 'The "chain" of emails referred to in the Rodwell Email'. The Rodwell Email refers to the email chain in passing, when introducing the italicised passage quoted from Mr Vass's email dated 13 May 2021: 'I was a little confused and surprise (sic) to see this given the communication we have received from you (in the email chain below) specifically where you stated on 13th of May 2021 ...'.

104 The only apparent relevance of the email chain is the presence of the passage quoted from that email. Essentially for the same reasons given in paragraphs 98 to 101 above, there is no reason to conclude that the Australian Society for Kangaroos test is met in relation to the email chain of which Mr Vass's email of 13 May 2021 forms a part. There is no sound basis for thinking that there is anything else in the chain that would assist an arguable claim of denial of procedural fairness toward the plaintiffs. It is purely speculative to suspect that the chain might reveal other 'commitments' or assurances.

105 To the extent that any substantive information about usage of the hiatus land by the Webb Street owners might have been conveyed in the email chain, there is no reason to conclude that information about the substance and gravamen of that claimed usage was not otherwise available to the plaintiffs in the lead up to the making of the resolution for the impugned declaration on 6 December 2022, and in any event, the email chain itself was not put before the Council for the purpose of making the declaration. As I have already said, in my view, the hearing rule case for trial will turn on whether or not the substance and gravamen of the claims of usage on which the impugned declaration turned had been fairly raised for the plaintiffs to address in the lead up to the making of that declaration.

106 The remaining two categories of discovery disputed on the appeal were addressed by her Honour in summary form at [86]-[87] of the primary judgment. They were:

(a) [1(j)] of the summons: 'The documents comprising the "evidence" of the Webb Street Owners' vehicle movements referred to at paragraph 5.2.1(e) of the agenda of 15 November 2022 ...'; and

(b) [1(i)] of the summons: 'The documents comprising the "evidence provided and available to Council" indicating that the plaintiffs had not accrued adverse possession rights, as referred to at paragraph 5.2.1(f) of the agenda of 15 November 2022 ...'.

107 I repeat paragraphs 82, 83 and 87 above. In these paragraphs, I set out my reasons for rejection of the second and fifth key steps I distilled from the plaintiffs' arguments on the appeal. These are the steps that are most apposite to the claims for discovery in the summons at [1(i)-(j)]. In short, although it is true that paragraphs 5.2.1(e) and (f) of the agenda for the Council's meeting on 15 November 2022 were in generic and conclusory terms, and that they merely purported to distil information obtained by members of Council staff from the Webb Street owners, this in itself does not mean that the body of underlying detailed information obtained by staff from the Webb Street owners would meet the Australian Society for Kangaroos test and would aid the plaintiffs' procedural fairness claims. All that the hearing rule relevantly required was that the plaintiffs had notice of the substance and gravamen of that information, not all the details. Further and in any event, it appears that it was only the substance and gravamen that was placed before the Council, not the underlying information. Further and finally, it is not necessarily the case that paragraphs 5.2.1(e) and (f) of that agenda were only supported by undisclosed information obtained from the Webb Street owners. By that time, Tony Douglas had made those claims at the Council's meeting on 25 October 2022, which was attended by the plaintiffs' representatives.

109 I will hear the parties on costs. Each party may provide a submission of no more than three pages on the question of the costs of the appeal.

[1] The judicial review proceeding was commenced under ord 56 of the Rules .

[2] Re IPO Wealth Holdings No 2 Pty Ltd (in liq); Mawhinney v Giasoumi [2022] VSC 199, [53]-[57] (Elliott J) (Giasoumi).

[3] Oswal v Carson [2013] VSC 355, [11] (Oswal) (Ferguson J, as her Honour then was); Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177.

[4] Owners Corporation Plan No RP 015268 v Yarra City Council [2023] VSC 318 (Ierodiaconou AsJ, 8 June 2023) (the primary judgment).

[5] Affidavit of Robert Sutherland McKay sworn 13 February 2023 and exhibit 'RSM-1' (appeal book pages 77-423); affidavit of Robert Sutherland McKay sworn 20 March 2023 (appeal book pages 424-431); affidavit of Robert Sutherland McKay sworn 16 May 2023 and exhibit 'RSM-2' (appeal book pages 432-446). See primary judgment [4(a)].

[6] Mayberry v Mornington Council [2019] VSC 623; (2019) 59 VR 383, [5(b)], [76]-[86], [93], [98]; see also Templestowe Developments Pty Ltd v Boroondara City Council [1997] 1 VR 504, 517, 523.

[10] LGA 2020 s 3(1), definition of 'member of Council staff' and s 48(1).

[11] The plaintiffs' solicitor deposed that they received an unredacted copy of the email on 16 December 2022 showing the sender's name (Mr Rodwell) - see primary judgment [15].

[12] The 'George St Owners' are the plaintiffs in this proceeding.

[13] Order of Judicial Registrar Keith made on 9 August 2023, recital B and order 13.

[15] As mentioned earlier in these reasons, the appeal book contained a number of affidavits filed after her Honour heard the summons. No party relied on those affidavits in this appeal or suggested that the appeal is rendered otiose by them.

[16] Citing Australian Society for Kangaroos Inc v Secretary, Department of Environment, Land, Water and Planning [2018] VSC 88, [21] (Ginnane J) (Australian Society for Kangaroos) and Moreland City Council v Minister for Planning [2014] VSC 468, [13] (Moreland City Council) (Daly AsJ).

[17] Plaintiffs' outline of submissions dated 17 May 2023, [2], [15].

[18] Plaintiffs' outline of submissions dated 17 May 2023, [17].

[19] Defendant's outline of submissions dated 16 May 2023.

[20] Primary judgment [51], drawing on her Honour's previous judgment in Rich v Ryan [2018] VSC 201, [11]-[18].

[21] Although the plaintiffs challenge an aspect of her Honour's later recitation of the test for discovery in the course of application of those principles, as discussed later in these reasons.

[22] Australian Society for Kangaroos [21] (emphasis added).

[23] Australian Society for Kangaroos [23].

[24] [1980] FCA 79; (1980) 41 FLR 175, 181-182.

[26] [2021] VSCA 100, [153].

[27] Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs and Others [2012] FCA 185; (2012) 127 ALD 288, [30]-[33] (Kenny J), especially [31]: 'Evidence that the decision-maker did not have can be admissible in a judicial review proceeding. Whether or not such evidence is admissible will depend on the applicant's grounds of review', citing Attorney-General (NT) v Minister for Aboriginal Affairs [1989] FCA 159; (1989) 23 FCR 536 at 539-40 (Lockhart J); McCormack v Commissioner of Taxation [2001] FCA 1700; (2001) 114 FCR 574, [37]-[40] (Sackville J); and [32]: 'New evidence (in the sense already mentioned) will be admissible in a judicial review proceeding where that evidence is relevant to establishing a ground of review challenging the decision-making process'.

[28] Percerep v Minister for Immigration and Multicultural Affairs [1998] FCA 1088; (1998) 86 FCR 483, 495 (Weinberg J).

[30] Primary judgment [59], citing, inter alia, La La Land Byron Bay Pty Ltd v The Independent Liquor and Gaming Authority [2014] NSWSC 1798.

[33] As articulated by Kaye J (as his Honour then was) in Winky Pop Pty Ltd v Hobsons Bay City Council [2007] VSC 468 (Winky Pop), Basten JA in McGovern v Ku-ring-gai Council [2008] NSWCA 209 (McGovern) and Emerton J (as her Honour then was) in Magee v Boroondara City Council [2011] VSC 78 (Magee). Primary judgment [60]-‍[64].

[34] See the remarks of Emerton J to this effect about the permit approval process in Magee [43]-[55]. If anything, the process for declaration of a public highway under s 204 of the LGA is likely to have been intended by the Parliament to be even further removed from anything resembling an adversarial, curial process.

[37] I infer that the officers in question were all (to use the statutory expression) members of Council staff. The evidence does not disclose whether they were also 'authorised officers' within the meaning of s 224 of the LGA. I will make no assumption either way on this point.

[38] This was not the same timing point as the one relied upon by the Council as the fourth argument in its submissions to her Honour, identified in paragraph 50 above.

[43] That is, item 8.4 of the agenda of 15 November 2022, carried over to the meeting on 6 December 2022.

[44] Notice of appeal [1(a)(iii)]; plaintiffs' outline of submissions dated 12 October 2023 (plaintiffs' appeal submissions), [18].

[45] Notice of appeal [1(b)(v)-(vi)(b)], [1(b)(viii)]; plaintiffs' appeal submissions, [21], [28], [30], [31].

[46] Notice of appeal [1(a)(iv)]; plaintiffs' appeal submissions, [19].

[47] Notice of appeal [1(b)(iv)(b)]; plaintiffs' appeal submissions, [26].

[48] Notice of appeal [1(a)(iv)], [1(b)(iv)(a)]; plaintiffs' appeal submissions, [30].

[49] Notice of appeal [1(a)(iii)]; plaintiffs' appeal submissions, [21]-[22], [25], [28], [31], [33], [34].

[50] Notice of appeal [1(b)(vii)]; plaintiffs' appeal submissions, [33].

[51] Notice of appeal [1(b)(i)-(ii)]; plaintiffs' appeal submissions, [21]-[22], [28], [31], [33], [34].

[52] Notice of appeal [1(a)(iv)], [1(b)(iii)]; plaintiffs' appeal submissions, [23], [29].

[53] Plaintiffs' appeal submissions, [20].

[54] Notice of appeal [1(a)(v)], [1(b)(ix)]; plaintiffs' appeal submissions, [24].

[55] Notice of appeal [1(b)(vi)(a)]; plaintiffs' appeal submissions, [32].

[56] Oswal [11], citing Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, [14] (Coal and Allied Operations).

[57] Oswal [11], citing Coal and Allied Operations 203-204 [14] (Gleeson CJ, Gaudron and Hayne JJ). See Practice Note No 4 of 2012 'Appeals from Associate Judges to a Judge of the Trial Division', [2]. This guidance was published in relation to the introduction of the Supreme Court (Associate Judges Appeals Amendment) Rules 2012, which substituted for then r 77.06 of the Supreme Court (General Civil Procedure) Rules 2005 new rules rr 77.06 to 77.06.9, which were later (after some further amendment) substantially reproduced as rr 77.06 to 77.06.9 of the current Rules. Notably, r 77.06.03 requires that a notice of appeal shall state the grounds of appeal, indicating that the appeal is for the correction of error. In light of the extensive powers conferred on the Judge by r 77.06.9, it is clear that the appeal is also a rehearing.

[58] Rules r 77.06.9(1); Giasoumi [53].

[60] See Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424, [22], citing: CDJ v VAJ (1998) 197 CLR 172, [111]; Allesch v Maunz [2000] HCA 40; (2000) 173 ALR 648, [22]; Coal & Allied Operations P/L v Australian Industrial Relations Commission (2000) 74 ALJR 1348, [14]; Crampton v R (2000) 176 ALR 369, [147]. See also Fox v Percy (2003) 214 CLR 118, [20], [27].

[61] (1936) 55 CLR 499, 505; Oswal [11]; Giasoumi [59].

[66] Giasoumi [56], citing Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 520 (Mason and Deane JJ).

[68] Plaintiffs' appeal submissions dated 12 October 2023, [24], citing Australian Society for Kangaroos [21].

[69] Defendant's submissions dated 16 October 2023, [19].

[70] See paragraph 69 above.

[71] [2002] HCA 51; (2002) 210 CLR 438 (Hot Holdings).

[72] Hot Holdings, especially [22] (Gleeson CJ) and [52] (Gaudron, Gummow and Hayne JJ) and [76]-[77]; and [16] (Callinan J). McHugh J agreed, but on more limited grounds: [74]. Kirby J dissented.

[73] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584-585 (Kioa v West) (Mason J).

[74] [2000] FCA 1113; (2000) 103 FCR 539, [70] (omitting citations); see also Kioa v West 587.