Plaintiff v Defendant

Supreme Court of Victoria|2017-04-07|Before: Ginnane J

JUDICIAL REVIEW - Discovery - Racing Integrity Commissioner's investigation report - Actual bias alleged - Documents relevant to Commissioner's investigation and decision-making - Immunity of Commissioner from being compelled to disclose decision-making process - Whether documents otherwise discoverable - Racing Act 1958 ss 37A, 37B, 37BA, 37C, 37E; Evidence (Miscellaneous Provisions) Act 1958 , , and .

PRACTICE AND PROCEDURE - Confidential exhibits - Report of Commissioner and transcript of plaintiff's interview - Whether should remain confidential - Discretionary considerations - Supreme Court (General Civil Procedure) Rules 2015 O.28 r (2)(a).

1 The plaintiff, Mr David Moodie, seeks judicial review of an investigation and report by the defendant, the Racing Integrity Commissioner ('the Commissioner'), Mr S Perna. Mr Moodie, at the time of the investigation was the Chairman of Racing Victoria Ltd ('RVL').

2 The issues for determination are whether Mr Moodie's request for discovery against the Commissioner should be granted and whether the Commissioner's application that two exhibits to Mr Moodie's affidavit, being the Commissioner's report and Mr Moodie's transcript of evidence given to the Commissioner, should be granted.

3 In the proceeding, Mr Moodie seeks an order that the Commissioner, in conducting an investigation under the Racing Act 1958, in respect of two matters and finding that those matters were substantiated did not accord him fair treatment. Mr Moodie also seeks:

An Order that in reporting adversely to the plaintiff in his report on 13th of December 2016 the defendant failed to observe the requirements for procedural fairness and failed to act in partially.
An Order that insofar as the said report of the defendant found the matters inquired into in relation to the plaintiff substantiated those findings be quashed.
An Order that in publishing a press release on 16 December 2016 confirming his findings of the matters referred to in paragraph 1a and b were substantiated, the defendant accedes his authority and acted unfairly to the plaintiff and failed to act impartially.

4 The two matters that the Commissioner investigated were:

That whilst a RVL Director David Moodie inappropriately disclosed information regarding cobalt investigations being undertaken by RVL into licensed racehorse trainers Kavanagh and O'Brien to [Peter] Moody, who was at that time, a licensed racehorse trainer, thus compromising or potentially compromising the integrity of the RVL cobalt investigations and the conduct of disciplinary and/or prosecution hearings or actions arising out of those investigations.

That David Moodie knowingly provided misleading and/or incomplete information to the RVL IC [Integrity Council] and/or the RVL Board, about the information he disclosed to [Peter] Moody concerning the RVL cobalt investigations.

5 Mr Peter Moody was a racehorse trainer and trained horses for Mr David Moodie.

6 At a directions hearing on 8 March 2017, Mr Moodie counsel sought discovery of:

1.1 all tapes and transcripts of any evidence taken by the defendant whether on oath or otherwise;

1.2 all documents provided to the defendant by any party and without limiting the generality of a foregoing, all minutes of all Racing Victoria Ltd Board meetings including attachments thereto of any Racing Victoria Ltd Integrity Council meetings;

1.3 any notes or memoranda written by or compiled by or on behalf of the defendant for the purposes of his investigation.

7 Mr Moodie's counsel also sought a watermarked copy of the Commissioner's final report, in order to confirm that their copy of the report was indeed the Commissioner's final report, as copies of the report that had been distributed to members of the RVL apparently had been watermarked. He also contended that it was unclear who had given sworn evidence to the Commissioner and who had not.

8 Mr Moodie's grounds in his originating motion include allegations that the Commissioner failed to interview all witnesses under oath, failed to give sufficient weight to various facts and to take into account particular evidence, failed to refer to relevant sworn evidence and accepted unsworn evidence. They also allege that the Commissioner made evidentiary errors: that his conclusions were against the evidence and the weight of the evidence; and that he failed to identify any evidence that verified any communication between the plaintiff and Peter Moody that compromised or potentially compromised the integrity of the RVL's investigations into the use of cobalt. They allege that the Commissioner failed to acknowledge that nothing that the plaintiff said could have changed the cobalt readings previously obtained from two trainers' horses. They allege that the Commissioner's conclusion that the plaintiff knowingly misled or provided incomplete information to the RVL Integrity Council and/or the RVL Board about his disclosures of information to Peter Moody was not supported by the evidence, which included evidence that the Integrity Council's minutes recording his disclosures were provided to the RVL Board.

9 The grounds also allege that the Commissioner, having provided his report on a confidential basis to the RVL Board, which in turn had published a press release on 15 December 2016 exonerating the plaintiff as the source of any leak concerning the cobalt testing of the two trainers, had on 16 December 2016 published a press release stating that the matters that he had been asked to investigate in relation to the plaintiff had been substantiated.

10 The grounds also include allegations that the Commissioner failed to accept that an error in a telephone number of a journalist recorded in the plaintiff's telephone records, was in fact caused by a Telstra error and was not due to him altering the number.

11 Within the context of these alleged defects and errors in the Commissioner's investigation and conclusions, Mr Moodie alleges that the Commissioner's media release about the results of his investigation, which was released the day after the RVL had announced the resignation of Mr Moodie as its Chairman, indicated the Commissioner's bias in the conduct of his investigation.

12 At the directions hearing on 8 March 2017, I raised with Mr Moodie's senior counsel whether the alleged factual errors in the Commissioner's report could establish bias or any other jurisdictional or reviewable legal error.

13 After the directions hearing, Mr Moodie filed by consent an amended originating motion widening its grounds and including allegations against the Commissioner of actual bias. The amended grounds include the following:

(m) That in investigating and reporting on the matters set out in paragraphs 1(a) and 1(b) of the plaintiff's claim, the defendant proceeded with bias against the plaintiff, whereby the matters (individually or collectively) on grounds (a)-(b) of the grounds, were as a result of the defendant's:

(1) application of bias against the plaintiff and/or;

(2) failure to apply natural justice to an assessment in the materials and evidence provided to the defendant in the course of his investigation.

14 In the amended originating motion, the fourth order that Mr Moodie seeks is expressed as:

An Order that in publishing a press release on 16 December 2016, confirmed his findings that the matters referred to in paragraphs 1a and 1b were substantiated, the defendant exceeded his authority and acted unfairly to the plaintiff and failed to act impartially and with bias against the plaintiff.[1]

15 After the directions hearing, both parties filed further written submissions on the discovery issue and, in the case of the Commissioner, the confidentiality of exhibits issue.

16 It is important to record that I am not deciding in this judgment whether any of Mr Moodie's allegations are correct or their legal consequences if they are correct. That will occur following the final hearing of this proceeding. I am only deciding two issues, the first of which is whether Mr Moodie should be provided with documents by way of discovery.

Is the Commissioner subject to an order for discovery?

17 The Commissioner submitted that he could not be subject to an order for discovery because he was exercising a statutory power which conferred on him the privileges and immunities of a superior court of record. To order discovery would require him to disclose the manner in which he reached the 'decision' contained in his report and a court could not be required to do that. This argument was based on the combination of two statutory provisions. First, s 37B(1) of the Racing Act which provides:

Subject to subsection (2), sections 14, 15, 16 and 21A of the Evidence (Miscellaneous Provisions) Act 1958 apply to the Racing Integrity Commissioner conducting an inquiry or investigation under this Part into a controlling body or a person, club or other body licensed or registered in accordance with the rules of a controlling body as if the Racing Integrity Commissioner were a board or a chairman of a board appointed by the Governor in Council.

Secondly, s 21A of the Evidence (Miscellaneous Provisions) Act 1958 [2] which is headed 'Privileges and immunities in relation to inquiries' and provides:

Where, either before or after the commencement of this Act, a board has been appointed or a commission has been issued to persons by the Governor in Council to make an inquiry -

(a) the members of the board or the persons to whom the commission has been issued (as the case requires);

...

shall have and shall be deemed always to have had the same privileges and immunities in respect of any act matter or thing done in or in relation to or arising in or out of the inquiry or any report of the inquiry as they would have or have had if the fact matter or thing was done in or in relation to or arose in or out of an action in the Supreme Court of Vitoria or a report of any such action.

18 Senior counsel for Mr Moodie submitted that the immunity would not apply to the Commissioner because he was an investigator, alternatively, that once he had stepped outside his 'statutory boundaries', that is statutory authority, he did not have immunity.

Consideration of whether the Commissioner is immune from discovery

19 I accept the defendant's submissions about the effect of the law. The legislation places the Commissioner, for the purposes of a discovery application in the position that he would have been in if this was a discovery application made in an action in the Supreme Court. Although the Commissioner was investigating and reporting and therefore differed in role from a judicial officer in the Supreme Court, who would ordinarily decide disputes according to law or grant legal remedies, the Commissioner was given the same privileges and immunities as a judicial officer. Attempts to question the judge's or decision-maker's state of mind by indirect means such as serving interrogatories or seeking discovery are not permitted.[3] In a case concerning applications to interrogate a member of the Refugee Review Tribunal and obtain discovery from that Tribunal, Herijanto v Refugee Review Tribunal[4], Gaudron J, in deciding the interrogatories application, stated that:

It has been settled law since Knowles' Trial that judges cannot be compelled to answer as to the manner in which they have exercised their judicial powers. In Hennessy v Broken Hill Pty Co Ltd,[5] the immunity was said to be such that judges cannot be compelled 'to testify as to matters in which they have been judicially engaged'. However, it was also pointed out in that case that 'their evidence has been received upon matters which did not involve the exercise of their judicial discretions and powers'.[6]

20 Her Honour referred to Canadian authority[7] where it had been decided that judges could not be compelled to disclose what affidavit evidence that had been received when that did not clearly appear from the record. Her Honour noted that, in an appropriate case, judges may be compelled to disclose the record on which they have acted stating that:

There is no difficulty in saying that, in an appropriate case, judges may be compelled to disclose the record on which they have acted. In the context of the judicial process, 'the record' bears a clear meaning. The same is not necessarily true in the context of administrative decisions. Thus, it is preferable to identify what is within the immunity, rather than that which is outside it. And in my view, the immunity is immunity from disclosing any aspect of the decision-making process. That is what is required to ensure freedom of thought and independence of judgment. And that approach is entirely consistent with what was said in Hennessy.[8]

21 I do not accept Mr Moodie's submission that the Commissioner's immunity does not apply where a plaintiff contends that he has exceeded his powers, because that interpretation would often remove the immunity of any effect, even when it may be later decided that the plaintiff's contention that he had exceeded his authority lacked merit.

22 I accept that the authorities establish that a judge, and therefore by analogy in this case the Commissioner, is immune from compulsory disclosure of any aspect of the decision-making process. While compulsory disclosure may be required to identify the record, that identification will usually only be required when certiorari or, an order in the nature of certiorari, is sought for error of law on the face of the record or where a statutory method of judicial review, for instance that available under the Administrative Law Act 1978, is provided.[9] The record is normally confined to the initiating document and the decision, in this case that would be the report of the Commissioner. The reason for that limitation was stated in Craig v South Australia[10]as being:

More importantly, the approach that the transcript of proceedings and the reasons for decision constitute part of 'the record,' would if accepted, go a long way towards transforming certiorari into a discretionary general appeal for errors of law upon which the transcript of proceedings and the reasons for decision could be scoured and analysed in search for some internal error.

23 In the Full Federal Court decision of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd,[11] the Full Court stated:

The limitation of the availability of review to cases in which error appears on the face of the record is, at least in part, designed to limit the frequency of such reviews. Identification of the content of the record should not be guided by the desire to find error. Rather, the focus should be upon identification of the issues raised for determination and the outcome of the process. As we have observed, Craig establishes that the starting point is that the record comprises 'no more than':

the documentation which initiates the proceedings and thereby grounds the tribunal's jurisdiction;

• the pleadings (if any); and

• the adjudication.

The reasons and transcript will only be incorporated by reference into the formal order (and therefore the record) to the extent that the reference brings about its incorporation as an integral part of the order (and record).

24 In my opinion, the Commissioner's immunity prevents an order for discovery in respect of documents in category 1.3 which are 'any notes or memoranda written by or compiled by or on behalf of the defendant for the purposes of his investigation' as they might disclose the Commissioner's decision-making. I do not consider that the immunity applies to the documents in categories 1.1 and 1.2, because those documents did not, in the sense described in the authorities, form part of the decision-making of the Commissioner.

25 As a result of my conclusion in paragraph 24, I therefore consider whether discovery should be ordered of the documents in categories 1.1 and 1.2.

26 In support of his application for discovery, Mr Moodie submitted that there was evidence of the Commissioner's bias in that having forwarded his report to the Racing Integrity Council and the RVL Board as a matter of confidentiality, he then issued the media release of 16 December 2016. His contention was that the Commissioner was probably dissatisfied with the terms of the RVL media release of the previous day. But he had no power to issue the media release and, in doing so, particularly, insofar as it denigrated him, it breached the confidentiality of the report. An order in the nature of certiorari should issue to quash the report.

27 Mr Moodie submitted that because the Commissioner had rejected his sworn evidence, it was appropriate that he obtain the Commissioner's records of the evidence of Mr Beazley, the Chairman of the Integrity Council and Mr Brown, the RVL Executive General Manager. There was an apparent dispute about the terms of a conversation between them and Mr Moodie on or about 25 August 2016 and about a conversation between Mr Moodie and Mr Saundry, the RVL Chief Executive Officer, on 13 January 2015. The Commissioner's finding on that issue led to, or influenced, his conclusion that Mr Moodie had not made a full and frank disclosure to the Integrity Council on 11 January 2016 about the source of the information that he provided to Peter Moody. There was also an issue of whether Mr Moodie told Mr Beazley and Mr Brown that Mr Saundry had confirmed to him the rumour that there were two more trainers with horses who had returned positive cobalt swabs. The Commissioner had rejected Mr Moodie's sworn evidence and accepted unsworn evidence. No reasons were given for that decision. Discovery of the records of the unsworn evidence of Beazley, Brown and Saundry, was required. Mr Moodie was entitled to know what evidence the Commissioner possessed to support his findings.

28 Mr Moodie also relied on the Commissioner's apparent reluctance to accept that he had not altered his phone records to conceal the number of a journalist, rather than the error in the number recorded in the statement, being due to Telstra's error. Mr Moodie also referred to other features of the Commissioner's investigation in support of his submission that he was actually biased in the conduct of the investigation.

29 He submitted that the Commissioner's press release was 'a blatant piece of evidence of bias, malice and hypocrisy' because the RVL media release of the previous day had noted that he had tendered his resignation, but otherwise exonerated him as the source of the leak after acknowledging that it had considered the Commissioner's 'confidential investigation on behalf of the Racing Victoria Integrity Council'.

30 Mr Moodie submitted that he had established sufficient to ground a suspicion that he had a good case, proof of which was likely to be aided by discovery.

31 Finally, Mr Moodie referred to the success of the two trainers, who were said to have been warned by Peter Moody of the cobalt investigation after Mr Moodie had given him with that information, in having the charges against them dismissed by the Victorian Civil and Administrative Tribunal ('VCAT') on 17 March 2017.[12] The summary of that decision by the President of VCAT, Garde J, stated:

The Tribunal finds that over the period from April 2014 until about August 2015, the procedure for testing for cobalt in equine urine adopted by Racing Victoria Ltd substantially departed from the requirements set out in AR 178D of the Rules of Racing. This is the rule that prescribes how sample testing for cobalt is to be conducted. The legal consequence is that the test results are inadmissible in evidence against the trainers.

32 Mr Moodie submitted that it must follow, that notwithstanding all of the arguments set out above in favour of granting discovery, that he could not have compromised or potentially compromised the integrity of the RVL cobalt investigation as it was flawed from the outset. The Commissioner should consent to an order setting aside his report.

33 The Commissioner submitted that Mr Moodie's case was largely based on allegations that the report's findings of fact were against the weight of evidence or lacked a logical foundation. Such allegations could not establish a failure to give procedural fairness to a person who was affected by the report finding. Mr Moodie could not on procedural fairness grounds re-agitate each item of evidence that was, or in his submission, ought to have been considered by the decision-maker.[13] The class of documents that Mr Moodie wanted discovered extended far beyond those that could be relevant to the procedural fairness ground.

34 The Commissioner submitted that certiorari was not available to quash a report that could only affect a person's reputation and not any of their legal rights or interests.[14]

Consideration of discovery application in respect of category 1.1 and 1.2 documents

35 Discovery is infrequently ordered in judicial review proceedings, but can be awarded where the plaintiff has a good, or at least arguable, case and proof of it would be aided by discovery. But, that is subject to any countervailing or discretionary factors. The authorities are helpfully discussed by Daly AsJ in Moreland City Council v Minister for Planning.[15] In Minister for Immigration and Multicultural and Indigenous Affairs v Wong[16] the Full Federal Court made the following statement concerning the availability of discovery in judicial review proceedings:

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.

36 I do not consider that Mr Moodie has established a good case for the extensive discovery that he seeks. I should add that Mr Moodie's request was for all the documents in his three categories and he did not make any alternative submission for discovery of a more confined class of documents.

37 Mr Moodie's allegations are serious including actual bias and malice. They turn, in the first instance, not on what the Commissioner stated in his report, but the consequences of him issuing the media release on 16 December 2016. But, he also alleges errors in the Commissioner's report, which is dated 13 December 2016.

38 I do not consider that the allegations of factual errors in the Commissioner's report, justify an order for the wide discovery that Mr Moodie seeks. Of course, he is entitled to rely on any errors that he can identify in the report and can invite the Court to draw inferences from them.

39 Mr Moodie did not establish any substantial basis on which the documents he seeks might assist him in establishing actual bias of, or by, the Commissioner. He has a copy of the Commissioner's report which contains the reasoning on which the Commissioner relied for his conclusions. A claim of actual bias requires a judgment about the state of mind of the decision-maker and will only be upheld 'where the accusations are distinctly made and clearly proved'.[17] As was stated in Michael Wilson & Partners Ltd v Nicholls[18]:

An inquiry about actual bias in the form of prejudgment would require an assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done.

40 Many of the matters that Mr Moodie relies on to establish bias are based on the Commissioner's failure to make the findings that he had wished. The authorities suggest that it is fallacious to argue that the fact that a decision-maker made some appealable error, whether by not dealing with the losing or aggrieved side's arguments or otherwise, demonstrates prejudgment.[19]

41 The Commissioner's conduct in issuing the media release on 16 December 2016 was a public act and does not require discovery to prove it. Subject to confirmation of the contents of the watermarked report, it appears that Mr Moodie received a copy of the Commissioner's report. The discovery sought goes far beyond the terms of the report and seeks every document and statement that the Commissioner had or received, presumably because it is hoped that they may help establish the bias on which it is sought to impugn the Commissioner's decision. In that respect, the discovery application is a fishing exercise.

42 I do not consider that VCAT's decision to allow the appeals by the two trainers is relevant to Mr Moodie's discovery application. The Commissioner was not investigating whether the rules of racing were followed in the testing for cobalt that was undertaken. It may be that that the failures identified by VCAT will impact on the Commissioner's findings, but that matter can be the subject of submissions at the final hearing of this proceeding.

43 I therefore consider that Mr Moodie has not established a case for the discovery of the documents sought in categories 1.1 and 1.2.

44 I do, however, consider that it is appropriate to direct under s 55(1) of the Civil Procedure Act 2010 that the Commissioner provide Mr Moodie with a copy of a 'watermarked' version of his report to remove any uncertainty as to the terms of the Commissioner's final report.

45 Again, to clear up unnecessary uncertainty that was said to exist, it is appropriate under s 49(1) of the Civil Procedure Act 2010 to direct that the Commissioner provide Mr Moodie with a list of the witnesses to his inquiry indicating who gave evidence on oath or affirmation and who gave evidence without taking an oath or making an affirmation.

Should exhibits 5 and 6 to the plaintiff's affidavit be confidential?

46 The Commissioner requests an order that exhibits 5 and 6 to Mr Moodie's affidavit filed in support of his originating motion be treated as confidential exhibits. I made a temporary order to that effect at the directions hearing. The two documents are a copy of the Commissioner's report and the transcript of Mr Moodie's interview.

On 13 December 2016, Mr Perna, having had a verbal briefing with Messrs Pakula and Beazley, then provided his written report ('The Perna Report') clearly on a 'confidential basis' to the members of the RVL Integrity Council (which in turn referred the Report to the full RVL Board). I was given a copy of the Perna Report by email which was not watermarked but I was informed that the copies that went to the Board were watermarked.

48 He then exhibited the report. There was no evidence that he was given the report on any confidential basis. In his media release, the Commissioner stated that:

My report outlined a range of findings in regard to matters investigated and concluded that, notwithstanding David Moodie was not the original source of the 'leak', both matters a) and b) above, had been substantiated.

It also included a finding as to the probable original source of the information regarding the positive samples of Mark Kavanagh and Danny O'Brien, which was subsequently passed on to David Moodie.

My report was provided to the RVL Integrity Council on Tuesday 14 December 2016 and has since been received and considered by the RVL Board.

As my report contains confidential and sensitive information, I do not intend to release the full report publicly. My findings and conclusions are now a matter for the RVL.

Further to the matters already identified in the Background section of my affidavit by references to parts of the Perna Report, I am particularly aggrieved with the manner in which Mr Perna conducted the investigation, his findings and the subsequent publication of those key findings by way of a press release in the circumstances hereinafter set out. I was examined under oath by Mr Perna on 15 November 2016. Now produced and shown to me and marked 'DM6-Confidential' is a true copy of the transcript of my interview. I have exhibited the transcript as confidential because when it was released by Mr Perna to my agent Mr Luntz, it was released on condition that it was not for public or further disclosure.

When Exhibit DM 6 was filed in the Court registry it was contained in a sealed envelope marked 'Exhibit DM 6 - Confidential until an order is made by a Judge'.

50 In support of a confidentiality order, the Commissioner relied on the recognised interest in protecting the source of confidential information provided to regulatory bodies. The Commissioner argued that if the contents of his reports to controlling bodies were routinely made available to the public, controlling bodies would have a powerful disincentive to refer matters to him that might reflect poorly on them or their officers. Employees of controlling bodies may feel they are at risk of reprisal if they provide information to the Commissioner. Evidence relevant to the conduct of an inquiry will often have to be taken from persons who cannot be compelled to provide evidence, but the Commissioner's coercive powers are confined to a limited class of persons.[20] There is a public interest in veterinarians and other persons who cannot be compelled to give evidence to the Commissioner being able to give evidence in confidence. The availability of such a procedure will assist the Commissioner to perform his statutory functions conferred by s 37C of the Racing Act. In its absence of such a procedure being available, information relevant to the performance of the Commissioner's functions may dry up.

51 Mr Moodie does not support the application that the two exhibits remain confidential, although he had originally described exhibit DM 6 as confidential.

Consideration of the Commissioner's application

52 The Commissioner's application is made under r 28.05(2)(a) of the Supreme Court (General Civil Procedure) Rules 2015, which provides that no person may inspect or obtain a copy of a document which the Court has ordered remain confidential.[21] The applicant must show that it would be seriously compromised or adversely affected if the order were not to be made.[22]

53 I accept that the interests of justice and good administration will often lead the Court to grant confidentiality to information provided by members of the public who are really in the position of informers. There are many cases that support that proposition.[23]

54 The Commissioner did not file an affidavit in support of his application for the two exhibits to be treated as confidential. The decision in Japara Holdings Pty Ltd v Rouse[24] to which the Commissioner referred suggests that is generally insufficient to contend that information is confidential, without an evidentiary basis.[25]

55 So far as the Commissioner's report is concerned, it is not self-evident that all of the report or, indeed, particular parts of it are confidential. The Commissioner's request was that all of the report be treated as confidential. No alternative submission was put that particular identified parts of the reports be so treated.

56 No reason was advanced as to why Mr Moodie's transcript or record of interview by the Commissioner should be treated as confidential, other than that it was provided to him on a confidential basis. There is no evidence that Mr Moodie gave any undertaking, or was asked to give any undertaking, that he would not disclose the evidence that he gave to the Commissioner. Insofar as Mr Moodie can recall his interview, he is under no legal restriction from disclosing what he was asked and what answers he gave.

57 The Commissioner has not established that all of exhibits DM 5 and 6 to Mr Moodie's affidavit should remain confidential. I will therefore discharge my temporary order of 8 March 2017.

58 The plaintiff's application for discovery and the defendant's application that the two exhibits DM 5 and 6 to the plaintiff's affidavit remain confidential are dismissed.

59 I will order that the defendant provide the plaintiff within 5 days a copy of a watermarked version of his report dated 13 December 2016 and a list of witnesses in his investigation, indicating those witnesses who gave evidence on oath or affirmation and those witnesses who gave evidence without making an oath or an affirmation.

60 Order 5 of the order of 8 March 2017 will be discharged.

[2] This section is now repealed, but it was not disputed that its terms were still to be applied under s 37B (1) of the Racing Act 1958.

[3] See M. Aronson, M. Groves and G. Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) 659 (Aronson, Groves and Weeks).

[4] [2000] HCA 16; (2000) 170 ALR 379; the report of the discovery application is (1990) 170 ALR 575.

[7] MacKeigan v Hickman (1989) 61 DLR (4th) 688.

[8] [2000] HCA 16; (2000) 170 ALR 379 [16] and Herijanto v The Refugee Review Tribunal (No 2) (2000) 170 ALR 575 [4],[10], [11].

[10] (1995) 184 CLR 165 at 181. The High Court referred to Wilson J's expression 'a roving commission through the materials' in Hockey v Yelland [1984] HCA 72; (1984) 157 CLR 124 at 142.

[12] Kavanagh and O'Brien v Racing Victoria Limited [2017] VCAT 386.

[13] Citing TCL Air Conditioner (Zhongshan) Company Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83; (2014) 232 FCR 361, 394- 5.

[14] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 580-1.

[17] Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507at 546 [127] (Kirby J) and M Robinson (ed), Judicial Review The Laws of Australia, (Thomson Reuters 2009) 438.

[18] [2011] HCA 48; (2011) 244 CLR 427 at 437-8 and Aronson, Groves and Weeks, 652.

[21] The Open Courts Act 2013 was said not to be relevant.

[22] Japara Holdings Pty Ltd v Rouse [2010] VSC 361.

[23] The Commissioner cited Lord Diplock's judgment in D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171 at 278 and Law Institute of Victoria v Irving [1990] VicRp 37; [1990] VR 429.

[25] Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at 647 [43].

(Miscellaneous Provisions) Act 1958

Court (General Civil Procedure) Rules 2015

Supreme Court (General Civil Procedure) Rules 2015

Open Courts Act 2013

(2014) 203 LGERA 152

At a glance

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Judgment (111 paragraphs)

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Legislation Cited (6)

Cases Cited (14)