Plaintiff v Defendant

Supreme Court of Victoria|2018-04-18|Before: Daly AsJ

PRACTICE AND PROCEDURE - Discovery - Application for preliminary discovery under rule 32.05 of Supreme Court (General Civil Procedure) Rules 2015 ('Rules') - Applicant owns and operates materials recycling facility and refuse transfer station pursuant to planning permit - Council amended planning scheme to rezone area, thereby prohibiting use of land for materials recycling facility and refuse transfer - Applicant submitted FOI request to Minister in respect of documents relied upon and considered when deciding to approve amendment - Redactions applied to certain documents produced by Minister, pursuant to exemption under s 30 of the Freedom of Information Act 1982 (Vic) - Whether the applicant has reasonable cause to believe that it may have a right to relief - Whether Minister may have acted for improper purpose being to undermine applicant's position in separate VCAT proceeding - Whether there is sufficient evidence to suggest that applicant's subjective belief that the Minister acted outside the scope of his power in approving the amendment is reasonably held, or is a mere suspicion or hunch on its part - , Unreported, Supreme Court of Victoria, 6 March 1998, referred to - , referred to - ; , referred to - No reasonable cause to believe that the decision to approve the amendment was activated by an improper or extraneous purpose - Whether delay in making the application warrants the Court exercising its discretion to refuse relief - Delay not relevant in the absence of prejudice - , referred to - Application dismissed.

1 Alex Fraser Pty Ltd ('Alex Fraser') is the owner and operator of a materials recycling facility and refuse transfer station ('facility') located at Kingston Road, Clarinda, in south eastern Melbourne. The facility processes approximately one million tonnes of building waste each year. It does so pursuant to a planning permit issued by Kingston City Council ('Council') in 2008, which expires in 2023 (with an option to extend). The facility is located in an area predominantly used in the past for sand mining and landfill. Most of the landfill operations in this area are coming to the end of their useful life, although monitoring and rehabilitation will continue for some years to come.

2 The relevant area is shown at Schedule A to these reasons. The area is outside the Urban Growth Area, and as such unavailable for residential development, even if that was feasible or desirable given the current and past use of the area. The area was, up until October 2015, zoned 'Special Use Zone Schedule 2 (Earth and Energy Resources Industry)'. However, to facilitate the achievement of its aspiration for the area to become part of a 'chain of parks' in the south eastern metropolitan region, the Council proposed and ultimately adopted an amendment to the planning scheme to rezone the area as a 'Green Wedge A' zone ('amendment'), which would substantially limit the uses to which land in the area could be used, and would prohibit the use of the land as a materials recycling facility after the expiry of Alex Fraser's current planning permit. The Minister for Planning ('Minister') approved the amendment on 11 October 2015, and the amendment came into effect upon its gazettal on 15 October 2015.

3 The amendment was approved contrary to the recommendations of a panel convened pursuant to the terms of the Planning and Environment Act 1987 (Vic) ('Act'), which recommended that part of the area, including the land upon which the facility is located, be excluded from the green wedge zone for the time being, largely in order to preserve part of the area for resource recovery and waste management purposes, which was said by the panel to be consistent with State Government policy.

4 Alex Fraser was an active participant in the panel hearing which led to the panel report issued on 8 May 2015. Alex Fraser was represented by senior and junior counsel during the course of hearing, and called expert evidence in support of its contention that any amendment to the planning scheme should not imperil the ongoing operations of the facility.

5 On 24 October 2014, prior to the appointment of the panel by the Minister, Alex Fraser applied to the Council to extend the expiry date of its planning permit to 2038 (that is, fifteen years beyond the current expiry date). An application was lodged at the Victorian Civil and Administrative Tribunal ('VCAT') in respect of the Council's failure to determine the extension application within the time prescribed by the Act, and the matter was listed for trial on 26 October 2015. However, after being informed of the Minister's approval of the amendment, which Alex Fraser considered substantially lessened its prospects of success in the VCAT proceeding, Alex Fraser discontinued the VCAT proceeding.

6 Following the discontinuance of the VCAT proceeding, Alex Fraser, via its solicitors, Norton Rose Fulbright ('NRF'), took steps to seek further information concerning the documents relied upon and considered by the Minister when he decided to approve the amendment. These steps are detailed in an affidavit affirmed by Mr Sean McArdle, a solicitor with NRF, on 9 November 2017 in support of this application, as follows (omitting headings and references to exhibits):

On 16 November 2015, NRF wrote to the Minister on behalf of Alex Fraser requesting copies of all documents that were relied upon and considered by the Minister when he decided to approve the Amendment.

On 16 December 2015, NRF received the Minister's response which stated that all publically available materially pertaining to the amendment could be accessed online and that other documents could be requested via a Freedom of Information (FOI) request.

On 5 January 2016, NRF on behalf of Alex Fraser made a request for information under the Freedom of Information Act 1982 (Vic) (FOI Act) to the Minister's Department, the Department of Environment, Land, Water and Planning (Department).

The FOI request requested access to the following documents (First FOI Request):

(a) 'all documents held by [the Department] that were relied on or considered by [the Minister] when he decided to approve the Amendment'; and

(b) the following documents concerning the Amendment and the Minister's consideration of the Amendment:

(i) 'any briefing memorandum or report to the Minister prepared by officers of the Department;

(ii) any briefing memorandum or report to the Minister prepared by another State Government department or agency (i.e. other than the Department), other State Government Minister or City of Kingston;

(iii) any other correspondence or documents between the Minister and officers of the Department;

(iv) any correspondence between the Minister and/or officers of the Department and other State Government Ministers and/or departments/agencies (for example, the EPA, Sustainability Victoria and the Department of State Development, Business and Innovation);

(v) any correspondence between the Minister and/or the Department with Councillors or officers of the City of Kingston; and

(vi) any document that considers the impact that approval of the Amendment would have on Alex Fraser's land use (materials recycling)'.

On 15 March 2016, the Department sent a letter to NRF providing its decision on the First FOI Request (First FOI Decision). This letter stated that the Department had:

(a) identified a number of documents (Identified Documents) which were within the scope of the First FOI Request (i.e. documents that were relied on or considered by the Minister when he decided to approve the Amendment); and

(b) decided to release the Identified Documents in part, subject to exemptions from disclosure provided in s 30(1) ('internal working docs') and a 32(1) ('legal professional privilege') of the FOI Act (Exempt Documents).

The Exempt Documents comprised:

(a) under s 30(1) of the FOI Act - 4 documents in full and 5 documents in part; and

(b) under s 32(1) - 2 documents in full and parts of 2 documents.

The First FOI Decision stated:

'Documents to which section 30(1) was applied include unsigned and final ministerial briefings, non-final versions of explanatory reports, an Officer Amendment Report and internal correspondence between department officers.'

On 30 March 2016, the Department provided copies of documents in accordance with its First FOI Decision (Released Documents).

On 20 May 2016, NRF made a second FOI request to the Department (Second FOI Request). The Second FOI Request requested access to the Released Documents, without redactions.

On 16 June 2016, the Department wrote to NRF refusing access to information requested in the Second FOI Request (Second FOI Decision).

On 12 July 2016, NRF lodged an application for review of the Department's Second FOI Decision with the FOI Commissioner (Commissioner) under Part VI of the FOI Act (FOI Application for Review).

On 15 July 2016, the Office of the Commissioner requested an extension of time to process the FOI Application for Review. On 11 August 2016, I replied to the Commissioner by email confirming that Alex Fraser agreed to an extension of time until 8 September 2016.

On 25 August 2016, I received an email from the Office of the Commissioner confirming receipt of the FOI Application for Review and stating that the 'current realistic estimate of time it will take to complete your client's review is eight weeks'.

On 2 December 2016, I received a phone call from the Commissioner's office. The officer indicated that her preliminary view was that she would recommend to the Commissioner to refuse the FOI Application for Review. The officer indicated that this was based on her view that the requested documents satisfied the exemption from release under s 30(1) of the FOI Act as release would be contrary to the public interest and could inhibit the provision of frank and candid advice to decision makers in the future.

On 27 January 2017, I sent an email to the Commissioner requesting an update on the Commissioner's decision.

To date Alex Fraser has not received any formal refusal of the FOI Application for Review from the Commissioner.

7 The documents provided by the Minister pursuant to the FOI request are in evidence.[1] They include letters from the Council, a community group 'Defenders of the Green Wedge Inc', and the member for Clarinda, all urging the Minister to 'call in' and refuse Alex Fraser's application to extend the life of its planning permit. The documents also include a letter from the Council to the Minister informing him of the Council's approval of the amendment. The documents include letters from the Minister to the Council, the local member and the Defenders of the Green Wedge Inc informing them of his decision to approve the amendment, and not to 'call in' Alex Fraser's application, but rather leave the matter to be dealt with by VCAT. The documents also include documents recording information and advice provided to the Minister by officials from the Department of Environment, Land, Water and Planning ('Department') regarding the amendment, some parts of which have been quite heavily redacted. Some parts of the documents, in particular the names and contact details of council officer and officers of the Department have been redacted as 'irrelevant', although it is not entirely clear to me why at least names of officials ought to be kept confidential for that reason or any other reason. Mostly, however, the redactions are labelled 'S30: internal workings', indicating that the Minister relied upon the exemption under s 30 of the FOI Act.

8 The documents produced do not include a detailed letter sent by the managing director of Alex Fraser to the Minister on 11 August 2015 urging him to reject the Council's position and adopt the recommendations of the panel concerning the amendment. On 23 October 2015, an official of the Department wrote to the chairman of John Swire & Sons Pty Ltd ('John Swire & Sons'), Alex Fraser's parent company, regarding the amendment. While Mr McArdle's affidavit refers to this letter being a reply to Alex Fraser's letter of 11 August 2015, this is unlikely to be correct, as the 23 October letter refers to a letter sent by the chairman of John Swire & Sons to the Premier of Victoria. I doubt very much turns upon this for the purposes of this application.

9 This proceeding was issued on 9 November 2017. In its originating motion, Alex Fraser sought relief under rule 32.05 of the Supreme Court (General Civil Procedure) Rules 2015 ('Rules'), as follows (omitting footnotes):

... the [Minister] make discovery to [Alex Fraser] of all documents that were relied on or considered by the [Minister] in coming to his decision to approve Amendment C154 to the Kingston Planning Scheme, including a copy of the following documents identified in the affidavit of Sean Anthony McArdle affirmed on 9 November 2017:

(a) the 'Identified Documents';

(b) an unredacted copy of the 'Released Documents'; and

(c) an unredacted copy of documents referred to in the 'Released Documents', including the document referred to as 'original brief BMIN14001246' in Document No 13 in the table following paragraph 36 of that affidavit identified as 'Supplementary briefing Memorandum to the Minister' ...

10 Rule 32.05 provides as follows:

Where -

(a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description the applicant has ascertained;

(b) after making all reasonable inquiries, the applicant has not sufficient information to enable the applicant to decide whether to commence a proceeding in the Court to obtain that relief; and

(c) there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had in that person's possession any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist the applicant to make the decision -

the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c).

11 I will turn to the submissions of the parties in more detail later in these reasons, but in short, the Minister opposes the application on the basis that Alex Fraser could not, objectively, have a 'reasonable cause to believe that it has a right to obtain relief' from the Minister, and further, Alex Fraser's delay in bringing this application not only diminishes its prospects of success in bringing any proceeding against the Minister, but also warrants the Court exercising its discretion to refuse relief upon this application.

12 There is little dispute concerning the principles applicable to applications for preliminary discovery under the Rules, which are accurately and conveniently summarised in Alex Fraser's written outline of submissions.

Alex Fraser submitted as follows (omitting footnotes):

The purpose of rule 32.05 is to enable a person to make an informed decision as to whether he or she has the right to obtain relief against an identified prospective defendant before a proceeding is commenced. The rule enables an applicant who believes that he or she may have a cause of action to obtain sufficient information to know whether the risk of litigation is worthwhile. It should be construed benevolently, because it is intended to assist an applicant who does not have sufficient, precise information to commence a proceeding, and to prevent the bringing of speculative suits. To that end, the rule must be given the fullest scope its language will reasonably allow.

In relation to the issue of whether Alex Fraser has 'reasonable cause to believe' that it may have a right to relief, Alex Fraser submitted that the following principles apply (omitting footnotes):

(a) the applicant is not required to show that it has a prima facie case for relief or to identify a cause of action precisely; rather, it is sufficient for an applicant to identify facts that may reasonably give rise to a right to obtain relief (the 'reasonable cause to believe' being a belief that the applicant may have a right to relief, not a conclusion that a prima facie case exists);

(b) whether there is the relevant 'reasonable cause to believe' must be determined objectively;

(c) some fishing is permitted but a 'flimsy foundation' or 'mere hunch' is insufficient to constitute a reasonable cause of action; and

(d) venturing too far into the merits of the existence of a possible cause of action may give rise to error.

In relation to the question of whether Alex Fraser satisfies the requirement that it lacks sufficient information to determine whether to bring a proceeding against the Minister, Alex Fraser submitted that the following principles apply (omitting footnotes):

(a) the question is not whether the applicant has sufficient information to decide if a right to relief is available but whether the applicant has sufficient information to make a decision whether to commence proceedings in the court;

(b) the test is whether it is reasonable for an applicant to be required to make a decision (to commence proceedings) without having information that would become available from the document(s) of which discovery is sought;

(c) it is not enough that the applicant subjectively feels that they cannot decide to commence a proceeding because of a lack of information; the question is whether the applicant, as an objective fact, has sufficient information to make that decision;

(d) what constitutes 'reasonable enquiries' is a question of fact to be considered in all the circumstances of the particular case, but an applicant is not required to make futile or unduly optimistic enquiries; and

(e) consistently with the policy underlying the Civil Procedure Act 2010 (Vic), an applicant is entitled to be cautious before making a decision to embark on costly litigation.

In relation to the question of whether the Minister has or had the relevant documents, Alex Fraser submitted that the following principles apply (omitting footnotes):

(a) possession means 'possession, custody or power';

(b) whether there is reasonable cause to believe that the Prospective Defendant has (or is likely to have, or has had, or is likely to have had) relevant documents in his possession, custody or power must 'turn on the particular facts' of the case; and

(c) whether there is reasonable cause to believe that inspection of those documents would assist the applicant to make a decision to commence the proceeding against the Prospective Defendant must also turn on the particular facts of the case.

13 Alex Fraser submitted that the circumstances were such, and the documents produced by the Minister to date disclose, that Alex Fraser may be entitled to relief in this Court on the grounds that the Minister acted for an improper purpose, or otherwise outside his jurisdiction, in approving the amendment, and/or failed to accord Alex Fraser natural justice. It was not suggested that the Minister has acted in a manner which was corrupt or dishonest, but rather, the Minister may have exercised his power to approve the amendment for an ulterior or extraneous purpose, that is, a purpose outside or beyond the purpose for which the power was conferred by Parliament.

The factual circumstances currently before the Court shows that Alex Fraser has a reasonable cause to believe that the purpose for which the Minister approved the Amendment warrants further scrutiny. There is a real possibility that the Minister's approval of the Amendment may be impugned. For example, if it could be shown that the Minister was actuated by a desire to undermine the Extension Proceedings, or to extinguish those proceedings, real questions would arise about whether the approval of the Amendment involved the valid exercise of statutory power. Alex Fraser is in no position to make a decision about whether to commence proceedings to facilitate that greater scrutiny until it obtains the documents that it seeks.

15 The documents produced to Alex Fraser by the Minister concerning the amendment pursuant to Alex Fraser's FOI application show that the original brief from the Department to the Minister was sent on 24 September 2015, and reviewed by the Minister on 6 October 2015. This document is heavily redacted. However, the unredacted part of this document appears to focus substantially upon the use of the area for waste recycling purposes, and the panel's recommendations to retain part of the area for this purpose. Alex Fraser submits that it is reasonable to draw the inference that the Department's recommendation was that the panel's (and Alex Fraser's) position on the amendment was to be preferred over that of the Council.

16 A supplementary brief was prepared by a Department officer on 8 October 2015, entitles 'TO88 Officer Amendment Report'. This document is heavily redacted, and ends with a recommendation that the amendment be approved. A further document was prepared by a Department officer on 9 October 2015, headed 'Supplementary Brief to BMIN15001246 - Kingston Green Wedge Amendment C143'. Under the heading 'Core Message' a paragraph is redacted in its entirety, following which the document addressed to the Minister states:

You instructed that [redacted] be implemented, which is to approve Amendment C143 as adopted by Council. The amendment, when approved, will rezone the whole of the Special Use Zone 2 (Earth and Energy Resources Industry) north of Kingston and Heatherton Roads to Green Wedge A Zone.

Timing: To enable this amendment to be gazetted prior to the Alex Fraser Pty Ltd materials recycling facility VCAT hearing, a decision is required by 13 October 2015.

17 Alex Fraser relied upon the above documents to support its contentions that the Minister's actions warranted further scrutiny in at least three respects. First, there is a possibility that by approving the amendment when he did, the Minister's actions practically, if not legally, substantially undermined Alex Fraser's prospects of success in the VCAT proceeding. Secondly, the internal Department documents indicate, if not establish, that the Department's initial advice was in support of the Panel's recommendations, not the Council's position, and that advice was subsequently altered upon the instructions of the Minister. Finally, there is a possibility that the Minister's position was guided by party political considerations rather than the purposes prescribed by the Act, as indicated by the letters to him by the local member supporting the amendment.

18 As for the question of whether the Minister was required to afford Alex Fraser procedural fairness, Alex Fraser submitted that, under the ordinary principles of administrative law, Alex Fraser's rights and special interests were so affected by the amendment such as to attract the operation of the 'fair hearing' rule. Alex Fraser's submissions acknowledged that the fair hearing rule has 'modified application under the Act', but noted that 'there is no authority, that forecloses the possibility that the Minister may be required to afford procedural fairness in the exercise of his power under s 35 of the Act.'

19 As the key issues in this application are whether Alex Fraser has reasonable cause to believe that it may have a right to relief against the Minister, and whether any delay on the part of Alex Fraser in making this application should affect its right to relief, it is not necessary to go into any great detail concerning Alex Fraser's submissions in relation to the second and third limbs of rule 32.05. However, the onus is upon Alex Fraser to establish a right to relief under each and every limb of rule 32.05, so I will summarise and deal with these submissions briefly.

20 In relation to the question of whether Alex Fraser has sufficient information to decide whether to commence a proceeding, Alex Fraser submits that it does not know what information was before the Minister when he decided to approve the amendment, given the redactions to the documents produced by the Minister pursuant to the FOI request. Further, Alex Fraser submitted that it has made reasonable enquiries concerning this information. It requested the Minister to provide this information. It made two applications under the FOI Act, the first of which resulted in the production of some documents, and the second of which was refused. An application for review of the second decision has not yet been determined.

21 The Minister made no submissions concerning the second and third limbs of rule 32.05, save to say that, to the extent that Alex Fraser contends that the Minister has failed to accord it natural justice, that this is apparent from the course of events, and no further documents are required to further investigate this matter prior to bringing a proceeding. His opposition focussed upon the first limb. In particular, the Minister submitted that Alex Fraser's belief that the Minister acted to undermine Alex Fraser's position in the VCAT proceeding was unreasonable and illogical. The panel report shows that the process leading up to the approval of the amendment commenced in 2010, with the Council's formal process commencing on 28 July 2014, before Alex Fraser made the application to VCAT to extend the duration of its planning permit. Accordingly, the Minister could not have acted for an improper purpose. Further, despite the approval of the amendment, Alex Fraser could still have been successful in the VCAT proceeding.

22 The Minister relied upon a number of decisions of the Federal Court concerning the equivalent Federal Court rule,[2] where the following statement of Hely J in St George Bank Ltd v Rabo Aust Ltd[3] was endorsed and applied (omitting citations):

[Belief] requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of the mind towards assenting to, rather than rejecting a proposition. It is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter of fact in question. If there is no reasonable cause to belief that on the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action.

23 Further, the Minister submitted that Alex Fraser must establish that the Minister had an obligation to afford it natural justice when he approved the amendment. The Minister submitted that the scheme of the Act and the authorities supports the Minister's position that no such obligation exists. In particular:

(a) the Act provides for Council to give notice of any amendment of the planning scheme to affected owners, and to consider any submissions made concerning a proposed amendment (that is, an obligation to afford natural justice is implied);

(b) the Act expressly provides that the panel appointed by the Minister to consider a proposed amendment is bound by the rules of natural justice;

(c) it is unlikely that an obligation is imposed upon the Council in considering the panel's report and determining whether to adopt an amendment with or without changes; and

(d) section 34 of the Act provides that the Minister may allow any person affected by a change to an amendment to make a submission to him or her. The Act is silent as to whether the Minister may allow a submission to be made where there was no change to an amendment, such as in the current case.

When the statutory scheme is considered as a whole, an affected person has the right to make a submission to Council (which Council must consider) and to a Panel (which the Panel must consider and report to the Council). However, after that stage, there is no obligation on the Council (in adopting the amendment) or the Minister (in approving the amendment) to afford natural justice.

Indeed, an obligation to afford natural justice cannot be implied into section 35 as such an obligation is at odds with the permissive (rather than mandatory) words of section 35 and is otherwise inconsistent with the statutory scheme.[4] It takes little imagination to consider the obstacles and delays to an otherwise efficient planning process if there was an obligation to afford natural justice implied into the ministerial approval stage.

25 The Minister also submitted that, in any event, there is no evidence to support any reasonable belief on the part of Alex Fraser that it was denied natural justice throughout the process. Alex Fraser:

(a) made a submission to Council objecting to the amendment;

(b) called evidence before and made detailed submissions to the panel; and

In any event, if it was correct that the Applicant was owed natural justice and it was denied natural justice (which is not admitted), immediately on becoming aware of the Minister's approval, it had sufficient information before it to know whether or not to commence proceedings on that basis. It would only need to rely upon the statutory scheme and what occurred. Preliminary discovery will not assist it in determining whether or not it can obtain relief on that basis.

27 Both parties made extensive submissions concerning the alleged delay on the part of Alex Fraser in bringing this application. Prior to turning to the question of delay in more detail, the following key dates are identifiable from the evidence.

NRF's request for documents relied upon and considered by the Minister

Approximate expiry date for Alex Fraser to bring a proceeding under O 56 of the Rules[6]

Provision of documents pursuant to first FOI request

NRF lodged application for review of the second FOI decision with the FOI Commissioner

Correspondence between NRF and FOI Commissioner re extensions of time

NRF informed that FOI Commissioner likely to refuse the application for review

NRF requested an update from the FOI Commissioner concerning the application for review. No formal response received

28 The Minister submitted that the question of delay was relevant in two respects. First, given that the time by which any application for judicial review expired long before the date of the issue of this proceeding, Alex Fraser would need to make an application for an extension of time to bring a proceeding, and in the course of that application, establish that there are 'special circumstances' justifying the grant of an extension of time. Given the reasonably high bar faced by Alex Fraser in pursuing such an application, Alex Fraser could not have reasonable cause to believe that it had a right to obtain relief from the Minister.

29 Secondly, the Minister submitted that Alex Fraser's delay in issuing this proceeding is largely unexplained, and as such, is a relevant factor which should cause me to exercise any discretion to refuse relief to Alex Fraser in this application. Even if one accepts that it was reasonable for Alex Fraser to pursue the first FOI request, by 30 March 2016 it knew that it lacked sufficient information to decide whether to commence a proceeding. Further, there is a substantial period of delay between the last contact between NRF and the FOI Commissioner on 27 January 2017 and the date of issue of this proceeding.

30 In relation to the first limb of the Minister's submissions, Alex Fraser submitted as follows:

(a) Alex Fraser does not need to establish a prima facie case against the Minister in order to obtain relief in this proceeding;

(b) the authorities indicate that, in determining an application for preliminary discovery, it is not necessary to go into any great detail regarding the merits of any potential claim;

(c) in any event, the need for preliminary discovery may be a relevant factor in determining whether to grant an extension of time; and

(d) it is open for Alex Fraser to seek declaratory relief in relation to the Minister's approval of the amendment. As such, given that declaratory relief is not relief in the nature of certiorari or mandamus, and as such, is not subject to the terms of order 56 of the Rules.

31 In relation to the question of whether any delay on the part of Alex Fraser in making this application ought influence the exercise of my discretion as to whether to grant the application, Alex Fraser relied upon the decision of John Dixon J in Murdesk Investments Pty Ltd v The Secretary to the Department of Business and Innovation[7] ('Murdesk') in support of its contention that delay was not a relevant factor, either in determining whether Alex Fraser had reasonable cause to believe it might have a right to obtain relief, or in exercising any discretion as to whether to grant the application.

32 The main issue in this application is whether there is sufficient evidence to suggest that Alex Fraser's subjective belief that the Minister acted outside the scope of his power in approving the amendment is reasonably held, or is a mere suspicion or hunch on its part. The questions of whether the Minister was obliged to afford natural justice, or whether any delay on the part of making the application ought tell against the granting of relief are, in my view, subsidiary matters.

33 I accept that the rule ought be beneficially construed, and that principle assumes greater significance now that parties and legal practitioners are obliged to certify under the Civil Procedure Act 2010 (Vic) that claims made by them in a proceeding have a proper basis.[8] However, it seems to me that there is a distinction between a situation where a party is seeking evidence to support a case it reasonably considers it may have, in order to make a decision as to whether it is viable and/or worthwhile to bring a proceeding, and a situation where a party is seeking to discover whether it has a case at all.

34 As stated by Harper J in National Formalwear Group Pty Ltd v Heldana Pty Ltd:[9]

On the one hand, the Court will not grant an application for discovery from a prospective defendant simply because the potential plaintiff has a hunch on bare suspicion that a cause of action is somewhere blowing in the wind. On the other hand, the rule is clearly designed to assist a prospective plaintiff that has a firm basis for thinking that a wrong has been committed but who lacks the hard evidence without which an undertaking as serious as litigation ought not be commenced.

35 Further, as noted by Vickery J in Grocon Constructors (Vic) Pty Ltd v Biosciences Research Centre Pty Ltd:[10]

Consistently with giving full effect to the overarching purpose of the Civil Procedure Act and to the observations already referred to in the case law ... it is accepted that r 32.05 should be construed, benevolently, and that it should be given the fullest scope its language will reasonably allow in its exercise.

However, that does not mean that the plain language of the requirements of the Rule should be eroded to the point where the prescribed tests are sucked dry of meaningful content. The tests remain as the defined gateways to the application of the Rule.

36 Here, the evidence is rather thin, and the inferences I am invited to draw from that evidence are somewhat strained. Essentially, what we have here is as follows:

(a) the Minister approved the amendment, which was vigorously promoted by the Council, albeit against the recommendations of the panel (in a very thorough and well-reasoned report);

(b) it is possible, from the unredacted parts of the documents provided to Alex Fraser pursuant to the FOI request, to draw an inference that the Minister probably rejected the initial advice of the Department, and called for revised briefing documents from the Department to reflect his views;

(c) the Minister received, and may well have taken into account, representations made by the Defenders of Green Wedge Inc and the local member, a government backbencher; and

(d) the reference in one of the documents for the need for the Minister to make a decision on the amendment prior to the VCAT proceeding.

37 For reasons explained further below, none of the above matters supports an inference that the Minister acted beyond power, or for an ulterior purpose.

38 It is trite law that, when considering whether a decisionmaker has acted beyond jurisdiction, the relevant purpose for which the power must be exercised is located within the statute conferring that power. Here, the Act is not of great assistance, in that the purpose of the Act is very broadly expressed, as follows:

The purpose of this Act is to establish a framework for planning the use, development and protection of land in Victoria in the present and long-term interests of all Victorians.

39 What can be inferred from this is that, in determining whether to approve an amendment to the planning scheme, the Minister must act in the public interest, having regard to both the immediate and medium to long term consequences of his decision.

40 In determining whether to approve the amendment, the Minister was confronted with a stark policy choice with strongly held competing views. Maximising the area of land within the green wedge zone no doubt has environmental, cultural, and potentially aesthetic benefits for the region, and indirectly, the metropolitan area as a whole, particularly once the quarrying and landfill sites have been rehabilitated. On the other hand, reserving some land for waste management purposes, particularly given the historical and current use of the area, and the limited land within the metropolitan area available for such purposes, is also clearly in the public interest, as contended for by the panel (and maybe also by the Department). Further, significant private interests, such as the legitimate interests of Alex Fraser, were also affected by the amendment. In short, reasonable minds can differ, as they did, upon whether the approval of the amendment was in the public interest.

41 For that reason, it is difficult to draw an inference that the Minister's rejection of the panel's recommendation, and possibly the Department's recommendation, without more, indicates that he approved the amendment for an improper purpose. Ultimately, he is the decision-maker. The same could be said for the submission that the Minister was motivated by party policy: governments are elected upon party policy platforms, which, after all, represent that party's view of the 'public interest'. Further, I doubt I need evidence to draw an inference that ministers are frequently the target of representations by parliamentarians and community groups, and that those representations are given some weight. That is hardly suggestive of any improper purpose.

42 I also doubt that the reference in the briefing document to the timing of the Minister's decision has quite the sinister connotations sought to be attributed to it by Alex Fraser. As noted above, the question of whether to approve the amendment involved a difficult decision concerning a matter of high policy, with legitimate interests and arguments on both sides of the debate. It was the culmination of a lengthy and unhurried consultation and decisionmaking process. It is highly implausible that a substantial motivating factor in approving the amendment was to, by a side wind, undermine Alex Fraser's position in the VCAT proceeding, albeit I accept the decision to approve the amendment had that effect. It seems to me to be a far more likely explanation is that the Department (and the Minister) understood that making the decision in advance of the VCAT proceeding would mean that the parties to the VCAT proceeding knew where they stood prior to its commencement. In any event, a press article exhibited to Mr McArdle's affidavit[11] indicates that on or about 8 July 2015 the Minister told 'Moorabbin Leader' that he intended to make a decision concerning the amendment prior to the hearing of the VCAT proceeding in October 2015. Thus, the Minister's intentions regarding the timing of the decision was publicly signalled well in advance. That statement demonstrates that the Minister appreciated that the timing of his decision on the amendment may have an impact upon the outcome of the VCAT proceeding, and no more.

43 In my view, this is a case where Alex Fraser is acting upon 'suspicion and conjecture' rather than an objectively reasonable cause to believe that the Minister had acted for an improper purpose, or otherwise outside the scope of his (very wide) powers under the Act.[12] In my view, the fact that the Minister rejected the panel's recommendations, and possibly the advice of the Department, does not suggest that the Minister acted for another purpose than making a decision in what he considered to be in the public interest. In the context in which the decision was made, and without more, it appears that the Minister simply took a different view as to whether the amendment was in the public interest. Further, while it was clear that the Minister was aware of the VCAT proceeding, it seems to me that it is unlikely in the extreme that derailing the VCAT proceeding was a 'substantial' purpose for which the power was exercised, 'in the sense that the power would not have been exercised but for the extraneous or ulterior purpose.'[13] The Minister was required to make a decision as to whether to approve the amendment, and it appears that the existence of the VCAT proceeding influenced its timing. It seems highly doubtful that the timing of the decision somehow influenced the nature of the decision.

44 Accordingly, I do not consider that Alex Fraser has reasonable cause to believe that the decision to approve the amendment was activated by an improper or extraneous purpose. Further, in the circumstances, notwithstanding the submissions of Alex Fraser (in reply) to the effect that approving the amendment was 'completely illogical', on the basis that there was no planning overlay or funds available to enable the Alex Fraser land to be acquired for use of public parkland, I doubt it could be said that the Minister had acted unreasonably, in the Wednesbury sense, or irrationally and/or illogically, which might also be a basis for obtaining relief. Rather, this is an instance of an understandably aggrieved party seeking documents not to make a decision as to whether to bring a proceeding to vindicate a claim it believes it has, but to identify whether it has a claim at all. Finally, while each application turns on its own facts and circumstances, a review of the authorities relied upon by the parties shows that the evidence in support of a claim to relief is generally much stronger than in the current case for relief to be granted under rule 32.05.

45 As for the question of whether the Minister breached any obligation to afford natural justice, to Alex Fraser, I agree with the submissions of Alex Fraser that the question is not settled, and the question needs to be considered in its factual context.[14] However, I agree with the submissions of the Minister that granting the application for preliminary discovery would not advance the position greatly. Given that the documents sought in this application substantially mirror the documents sought by the FOI request, Alex Fraser knows that the Minister did not consider or rely upon its letter of 11 August 2015. Accordingly, granting the application would not add to the information Alex Fraser already has.

46 Finally, for completeness, I would add that I would have not have refused the application on the basis of delay alone. In relation to the first limb of the Minister's submissions in that regard, I note that while delay might be relevant to the question of whether the Court would exercise its discretion to grant declaratory relief, the grant of declaratory relief is not confined by the requirements of order 56 of the Rules. Further, even if an application was made under order 56, I could not completely rule out the possibility that Alex Fraser would be granted an extension of time, even if Alex Fraser's prospects of success in such an application was a significant matter in determining whether Alex Fraser had reasonable cause to believe it had a right to obtain relief. Finally, I accept that Alex Fraser could circumvent any need to apply for an extension of time by issuing a writ.

47 As for the impact of any delay upon the exercise of the discretion to grant an application under rule 32.05, I note there is authority that delay in the absence of prejudice is not particularly relevant.[15] No relevant prejudice has been identified here. And, while the delay in 2017 is unexplained, it was reasonable of Alex Fraser to pursue the FOI process in 2016, thus accounting for a substantial part of the period of delay. I note that the relevant period of delay in Murdesk,[16] a decision relied upon by both parties, was some six years. Finally, given that rule 32.05 ought to be beneficially construed, if each of the limbs of the rule are otherwise satisfied, any delay would have to be egregious, or prejudicial, to deprive an otherwise successful applicant of relief under the rule.

[1] Exhibit 'SMM-11' to the affidavit of Sean McArdle affirmed on 9 November 2017.

[2] Hua Wang Bank Berhad v Commissioner of Taxation (No 2) [2012] FCA 938; (2012) 298 ALR 178; and Higgins v Hancock as Liquidator of Arabella Investments Pty Ltd (in liq) [2011] FCA 1492, where Jacobson J said, at [69], 'In my opinion, the seriousness of the underlying allegation, namely that statutory powers have been deliberately misused, must be borne in mind when determining whether [an applicant] has established that he holds the necessary objectively reasonable belief.'

[4] Colonial Range Pty Ltd v Victorian Building Authority and Ors [2014] VSC 272, [125]; Friends of Mallacoota Inc v Minister for the Environment (2010) 28 VR 257, 283-285; Keller v Bayside City Council [1996] VicRp 23; [1996] 1 VR 356, 378.

[5] I am unsure that the evidence supports such a conclusion: the letter of the Department official dated 23 October 2015 appears to be in response to another letter, addressed to the Premier, which was not in evidence.

[6] Taking into account the Christmas/New Year hiatus.

[8] See BJ Bearings Pty Ltd v Whitehead [2016] VSC 44, [19].

[9] Unreported, Supreme Court of Victoria, 6 March 1998, at page 2.

[10] [2014] VSC 204, [52]-[53].

[12] See the authorities referred to at footnote 2 of these reasons.

[13] See the authorities relied upon by Alex Fraser in its submissions, including Thompson v Randwick Corporation [1950] HCA 33; (1950) 81 CLR 87; Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30; East Melbourne Group Inc v Minister for Planning [2008] VSCA 217; (2008) 23 VR 605 per Ashley and Redlich JJA.

[14] Winky Pop Pty Ltd & Anor v Hobsons Bay City Council [2007] VSC 468, [49].

[15] Optiver Australia v Tilsra Trading [2008] FCAFC 133; (2008) 169 FCR 435, [41].

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