//
[2020] VSC 177
General information, not legal advice.
Supreme Court of Victoria
2020-05-20
Daly AsJ
Original judgment source is linked above.
[2020] VSC 177 Revised 31 August 2020
JUDICIAL REVIEW - Application by the defendants for summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic) - Plaintiff challenged a decision of a Committee of Cabinet to terminate a tender process for the development of a new residential, educational and employment hub on State owned land - Whether the plaintiff's claim has any real prospects of success -Nature and subject matter of decision means that the decision is not justiciable - Minister for Arts, Heritage and Environment v Peko Wallsend Ltd (1987) 15 FCR 274 and Acquista Investments Pty Ltd v Urban Renewal Authority (2015) 123 SASR 147 referred to and applied, ; distinguished - No other reason for keeping proceeding on foot - application for discovery and the administration of interrogatories refused.
1 On 11 June 2014, the Metropolitan Planning Authority ('MPA') issued a Request for Expressions of Interest ('REOI') for the acquisition and development of the East Werribee Major Development Parcel ('Precinct'). The Precinct, which includes the site of the former State Research Farm, comprises more than 400 hectares of land, and was earmarked by the Victorian Government ('State') for residential and commercial development. In the REOI, the State elaborated upon its 'vision' for the Precinct, as follows:
In accordance with the East Werribee Precinct Structure Plan, the 775 hectare East Werribee precinct is planned to:
The PSP plans for five employment hubs, including the Town Centre, Health and Learning hub, Commercial hub, an Interchange hub and Enterprise hub, along with residential communities, allowing people to live, work and access all goods and services locally.
The Major Development Parcel includes some or all of the Town Centre, Commercial hub, interchange hub, Wattle Village community, Lakeside community and Point Cook South West community, offering a mixture of residential and commercial areas spanning the full width of the precinct.
East Werribee offers a rare opportunity of scale to demonstrate a new benchmark for urban infill development, with development facilitation tools in place and market fundamentals in support:
2 The plaintiff, Australian Education City Pty Ltd ('AEC'), is an Australian-owned special purpose vehicle incorporated for the purpose of tendering for the development of the Precinct. AEC submitted an initial bid in response to the REOI on 22 July 2014. The first defendant in this proceeding, the Victorian Planning Authority ('VPA'), is the successor to the MPA. The second defendant is the State. The third and fourth defendants are the Minister for Priority Precincts and the Assistant Treasurer respectively.
3 AEC's initial bid in response to the REOI described its vision for the development of the Precinct as follows:
AEC's development vision is substantially different to the standard development. This vision includes building a world class education and research 'Hub' comprising a Chinese University, a research centre, and a senior secondary school. This is expected to create significant additional benefits primarily through the attraction of international students and R+D investment dollars.
AEC's vision includes a university and senior high school. It is estimated that once the high school and university are operational that this will attract an additional 18,750 international students generating $550 million per annum totalling $18.1 billion over the period to 2050.
Australian Education City ('AEC'), a consortium of major Australian and Chinese entities, is an enterprise focused investor seeking to create a significant and sustainable long-term learning, working and living community environment in Australia, utilising its access to Chinese and global capital plus its member's [sic] core city building, education and research credentials and experience. AEC will build a world class city within Greater Melbourne, one of the world's most liveable urban environments. This city building experience is unmatched by Australian developers and will deliver an integrated, cutting edge and vibrant ecosystem for Jobs, Education, Innovation and Community.
AEC will elevate Victoria to a whole new level of capacity and excellence in the global education market, building a purpose built environment for collaboration and innovation. The city will bring to Victoria a sustainable and physical competitive advantage, building jobs and creating a vibrant city to live, work and learn in Melbourne's West. AEC will deliver a Collaborative University Campus in conjunction with International Universities, multi‑national enterprises and Australian innovation, to create a world class Education, Research and B2B Precinct.
5 AEC's final proposal for development of the Precinct, described as a '$31 billion new smart city', included:[1]
(a) a university campus, including a public or other approved provider of a Vocational Education and Training facility;
(b) a research and development precinct;
(c) an integrated water management and lake system;
(d) a heritage park and botanical gardens;
(e) an indigenous community hub;
(f) commercial, retail and mixed use development;
(g) schools;
(h) transport infrastructure, including the extension of Derrimut Road, and the diversion of the Werribee rail line through the Precinct via a tunnel and the construction of a new commuter railway station; and
(i) residential, community, affordable and student housing development.
6 On 30 June 2019, the State, through its Deputy Secretary, Department of Jobs, Precincts, and Regions, Mr David Latina, informed AEC by letter that the State had decided not to proceed with AEC's proposal for the development of the Precinct. This followed a series of protracted discussions and negotiations regarding AEC's proposal for the development of the Precinct ('tender process'), as detailed in the following paragraphs of these reasons. On 5 July 2019, the Honourable Gavin Jennings MLC, who was at that time, among other things, the Minister for Priority Precincts, issued a press release, which stated as follows:
EXPRESSION OF INTEREST FOR WERRIBEE LAND CONCLUDES
The Victorian Government has decided to conclude the Expression of Interest process for the sale of East Werribee Employment Precinct land.
Following careful examination, the Australian Education City proposal for the East Werribee Employment Precinct will not proceed. The Government thanks the Australian Education City group, including the local and international partners, for its time and involvement in the project and process.
With the continued growth in Melbourne's West, the Government will undertake further work to better understand the investment required to support the region's transport infrastructure needs, particularly in light of its commitment to the Suburban Rail Loop and Melbourne Airport Rail Link.
The Government acknowledges the importance of strengthening ties between universities and industry in Melbourne's West, and increasing job opportunities.
There has been significant investment and job creation in the East Werribee precinct with the $95 million St Vincent's Private Hospital development creating 102 jobs and the $85 million expansion of the Werribee Mercy Hospital creating 171 positions. With other investments, thousands of jobs have been injected into the area.
The Government will continue to explore ways of maximising Werribee's potential as a vibrant and attractive precinct, designed with people in mind.
7 The tender process spanned nearly five years. On 31 October 2014, the MPA informed AEC that it had been shortlisted to participate in the next stage of the selection process, being the Request for Proposal ('RFP') stage. Following this letter, on 3 November 2014, the MPA provided a document to AEC outlining the RFP process ('RFP documentation'). The RFP documentation provided, among other things, as follows:
11.1 RFP is Not an Offer
This RFP does not constitute an offer. Respondents acknowledge that the lodgement of a Proposal or other action pursuant to this RFP does not create any legal rights or obligations (including any process contract), with the exception of any formal contractual documents executed with the Successful Respondent).
...
11.13 MPA's Reservation of Rights
MPA reserves the right to:
(a) to [sic] accept, reject or refuse to consider any Proposal (including non-conforming proposals);
...
(e) withdraw, suspend or terminate the RFP process at any time;
(f) terminate the further participation of any Respondent or decline to select a Successful Respondent...
...
11.17 The State's Decision
Respondents are not entitled to enquire into the basis of the State's decision to accept or reject any proposal.
...
11.22 Respondent's Acknowledgements, Warranties and Indemnity
By lodging a Proposal, each Respondent:
(a) acknowledges that it accepts the terms of the disclaimer set out in this RFP and the terms and conditions contained in this RFP.
8 AEC submitted a proposal in response to the RFP on 4 March 2015. On 27 October 2015, the Minister for Finance and Multicultural Affairs sent AEC a letter advising that the State had appointed AEC as the preferred bidder for the Precinct. This letter stated, among other things:
The appointment of AEC as the preferred bidder subject to the terms outlined in this letter does not fetter the State's rights whatsoever from acting in accordance with the terms set out in the Request for Expression of Interest and Request for Proposal documentation. The State makes no commitment to proceed with the sale or enter legally binding documentation with AEC following the further due diligence period.
9 On 15 August 2016, the Minister for Finance and Multicultural Affairs sent AEC a letter advising that the State had granted AEC a six-month exclusivity period from 15 August 2016 to 15 February 2017. The letter stated as follows:
During this period, it is our desire that the parties finalise a detailed terms sheet setting out mutually agreed commercial terms, with a development agreement to be entered into shortly thereafter. We would like to work in partnership to resolve a number of threshold issues and other issues within the first three months of the exclusivity period, with the balance of the period used to document the detailed terms sheet...
...If the State and AEC do not achieve mutual resolution of the threshold and other commercial matters within three months, and a detailed terms sheet which is capable of being converted to a development agreement within the exclusivity period, the State reserves its rights, including to elect to withdraw from the sales process (in its absolute discretion). Finalising a terms sheet and entering into the development agreement remain subject to Government approvals typical for this type of transaction.
10 Between August 2016 to November 2017, AEC and the State were involved in the negotiation of a terms sheet with the objective of reaching broadly agreeable commercial terms with respect to the development of the Precinct.
11 On 3 November 2017, AEC submitted a terms sheet, which provided, among other things, as follows:
Nothing in this Term Sheet [sic] or the Transaction Documentation imposes any general duty of good faith on the State to the Preferred Developer, other than to comply with the obligations (if any) expressly stated to be assumed by the State under the Transaction Documentation on a good faith basis. The Minister, the State and the Preferred Developer will conduct their dealings properly and diligently and in accordance with law but otherwise the Minister and the State will not be under any obligation to proceed with the Project, or to enter into formal legally binding contracts in respect of the Project, unless the Minister and the State are satisfied in all respects with the terms and conditions of the Transaction Documentation.
The Preferred Developer acknowledges that it has no claim (including without limitation as to costs) if the Minister and the State do not proceed with the Project or enter into formal legally binding contracts or if the parties' negotiations in relation to the Terms Sheet end.
12 At a meeting on 17 June 2019, the Expenditure Review Committee of Cabinet ('Committee') approved the formal conclusion of the tender process and the termination of negotiations with AEC. A partially-redacted minute of the meeting ('decision record') stated as follows:
13 The State informed AEC of the decision not to proceed further with the tender process at a meeting with AEC on 28 June 2019, and by a letter dated 30 June 2019 ('30 June 2019 letter'). The 30 June 2019 letter stated as follows:
East Werribee Employment Precinct and Major Development Precinct
I refer to:
c) the letter from AEC provided to the State at that meeting; and
First let me confirm that we appreciate the work undertaken by AEC as part of the REOI process to provide the State with information to enable the State to assess AEC's response to the REOI.
As discussed at our meeting on Friday, the State has made a decision to not proceed further with the REOI process.
As acknowledged at that meeting, AEC remains subject to the confidentiality obligations which apply to the REOI process and the East Werribee Major Development Precinct. The State also expects AEC to ensure that its consortium members, related bodies corporate, shareholders and advisers keep confidential all matters related to the REOI process.
14 AEC is, understandably, aggrieved at the State's decision to terminate the tender process. Between the commencement of the tender process in 2014 and its conclusion in June 2019, AEC spent approximately $93 million developing its proposal for the Precinct. The reasons for the State's decision to terminate the tender process were not disclosed by the evidence.
15 Prior to turning to the parties' submissions concerning the current application, the Originating Motion is summarised below.
16 Paragraph 26 of the Originating Motion states as follows:
The purported REOI decision was made outside the parameters of the REOI process and was beyond jurisdiction:
Particulars
17 Paragraph 27 of the Originating Motion states as follows:
Further or alternatively to the preceding paragraph, the State was obliged to and failed to accord procedural fairness to the Plaintiff.
Particulars
18 Paragraph 28 of the Originating Motion states as follows[3]:
The Purported Decision was affected by apprehended bias.
Particulars
Particulars will be provided upon request.
19 Paragraph 29 of the Originating Motion states as follows:
The purported REOI decision lacks intelligible justification
Particulars
20 Paragraph 30 of the Originating Motion states as follows:
On 22 July 2019, the Plaintiff made a request for reasons for the purported REOI decision.
Particulars
The request was contained in a letter from the Plaintiff to the Second Defendant (Department of Jobs Precincts and Regions) dated 22 July 2019.
21 Paragraph 31 of the Originating Motion states as follows:
On 7 August 2019, the State:
(a) refused to provide reasons for the purported REOI decision; and
(b) refused to identify the decision-maker.
22 Paragraph 32 of the Originating Motion states as follows:
The decision-maker was a 'tribunal' within the meaning of the AL Act.[4]
Particulars
23 Paragraph 33 of the Originating Motion states as follows:
Under s 8(1) of the ALA, the decision-maker was required to furnish the Plaintiff with a statement of its reasons upon request.
Particulars
The Plaintiff requested reasons for the purported REOI decision on 22 July 2019, which was within 30 days of the purported REOI decision coming to the Plaintiff's knowledge.
24 In its prayer for relief, AEC seeks a declaration that the decision to end the tender process was invalid, or, in the alternative, seeks an order in the nature of certiorari quashing the decision to end the tender process. AEC also seeks orders pursuant to s8(4) of the Administrative Law Act 1978 (Vic) ('ALA') compelling the State to provide reasons for its decision to end the tender process.
25 The reference in the Originating Motion to the 'purported REOI process' reflects the language of the 30 June letter. However, the decision record makes it clear that the relevant decision is the decision of the Committee to end the tender process. AEC relied upon the mischaracterisation of the relevant decision in the 30 June letter as one basis for resisting the State's summary judgment application. However, in my view, the apparent error in the 30 June letter is not material to the real issue in the State's application, being whether the decision to end the tender process is justiciable. If the decision is justiciable, or, more accurately, if there is a real prospect that it is justiciable, it would be a simple matter to amend the Originating Motion to more accurately reflect the nature of the decision made by the Committee.
The current applications, and the test for summary judgment
26 In their summons filed on 5 December 2019, the defendants sought the following relief:
(1) An order that the First, Third and Fourth Defendants cease to be parties to the proceeding pursuant to r 9.06(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules).
(2) Summary judgment for the Second Defendant in the proceeding pursuant to s 63 of the Civil Procedure Act 2010 (Vic).
(3) In the alternative to (2), orders that:
27 Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules') provides as follows:
Where a proceeding generally or any claim in a proceeding -
(a) is scandalous, frivolous or vexatious; or
(b) is an abuse of the process of the Court -
the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.
28 Rule 23.02 of the Rules provides as follows:
Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading -
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c) may prejudice, embarrass or delay the fair trial of the proceeding; or
(d) is otherwise an abuse of the process of the Court -
the Court may order that the whole or part of the indorsement or pleading be struck out or amended.
29 In addition, the defendants rely upon s 63 of the Civil Procedure Act 2010 (Vic) ('CPA'), which provides as follows:
Summary judgment if no real prospect of success
(1) Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2) A court may give summary judgment in any civil proceeding under subsection (1) -
(a) on the application of a plaintiff in a civil proceeding;
(b) on the application of a defendant in a civil proceeding;
(c) on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.
(a) the test for summary judgment under section 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a 'real' as opposed to 'fanciful' chance of success;
(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the 'hopeless' or 'bound to fail test' essayed in General Steel;
(c) it should be understood, however, that the test is to some degree a more liberal test than the 'hopeless' or 'bound to fail test' essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;
(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[6]
31 Further, Neave JA (who otherwise concurred with the statements made by the majority) stated as follows:
... I am concerned that undue emphasis on the caution with which a court must exercise the power of summary dismissal runs the risk of reinforcing the historical approach to summary dismissal and may result in the legislative liberalisation of the test in s.63 have little impact in practice. That approach would be inconsistent with the objective of reforming the law relating to summary judgment, expressed in s 1(2)(e) of the Civil Procedure Act, and with the requirement that the Court give effect to the over-arching purpose of [the CPA], imposed by s 8.[7]
32 Section 64 of the CPA provides as follows:
Court may allow a matter to proceed to trial
Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because -
(a) it is not in the interests of justice to do so; or
(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.
33 Therefore, the Court retains a residual discretion to not grant summary judgment. Nevertheless, the occasions where the Court has allowed a proceeding to continue notwithstanding that the proceeding has no real prospects of success are rare.[8]
34 In the days leading up to the hearing of the State's summary judgment application, AEC filed a summons seeking the following relief:
35 AEC submitted that, given the absence of reasons, and in the light of the evidence filed by the State regarding the proper characterisation of the relevant decision, discovery and interrogation was required to enable AEC to examine and evaluate the State's decision making process. The application was not accompanied by any draft interrogatories. As the proceeding was commenced by an originating motion, AEC needs leave to administer interrogatories.
36 AEC relied on an affidavit sworn by its solicitor, Mr Richard Dammery, on 26 August 2019. In his affidavit Mr Dammery deposed, in summary, as follows:
(a) from mid-2014, AEC participated in the tender process for the development of the Precinct. The estimated development cost of the Precinct was around $31 billion over twenty years;
(b) on 31 October 2014, AEC was informed that it had been shortlisted to participate in the RFP stage of the process;
(c) on 3 November 2014, AEC was provided with the RFP documentation, which, among other things, indicated that a contract to develop the Precinct would be awarded in June 2015;
(d) on 4 March 2015, AEC submitted to the MPA a proposal in response to the RFP;
(e) on 27 October 2015, by a letter from the Hon Robin Scott MP, Minister for Finance ('Minister'), AEC was informed that it was the preferred bidder for the development of the Precinct;
(f) throughout the remainder of 2015 and into 2016, AEC was directed by the MPA to address a series of "90-day milestones" covering each of the key elements of its proposal;
(g) on 15 August 2016, AEC was informed in a letter from the Minister that the State had granted AEC a six-month exclusivity period from 15 August 2016 to 15 February 2017;
(h) from August 2016, AEC participated in regular meetings and inter-departmental workshops with the VPA and the Department of Treasury and Finance;
(i) AEC and State also engaged in negotiations regarding a terms sheet, and on 21 August 2017, AEC formally submitted a terms sheet to the VPA;
(j) following the submission of the terms sheet on 21 August 2017, negotiations continued between the parties regarding the terms sheet. AEC subsequently submitted the final version of the terms sheet on 3 November 2017;
(k) on 1 March 2018, Mr David Martine, the Secretary to the Department of Treasury and Finance, advised AEC by telephone the Minister had read AEC's letter and was 'very keen' to proceed;
(l) on 14 March 2018, senior personnel of AEC met with Mr Richard Bolt, the Secretary to the Department of Economic Development, Jobs, Transport and Resources and Mr Martine. At the meeting, Mr Martine asked AEC to continue to prepare for the development of the Precinct;
(m) on 4 April 2018, a consortium member, PowerChina, sent a letter to the Premier, the Hon Daniel Andrews, affirming its ongoing commitment to the development of the Precinct;
(n) on 18 April 2018, Mr Simon Phemister (then Deputy Secretary of the Department of Premier and Cabinet) informed Mr Tabart of AEC by telephone that the government had engaged Mr Warren McCann to review the tender process. Mr Phemister informed Mr Tabart that Mr McCann would report directly to Mr Chris Eccles, the Secretary to the Department of Premier and Cabinet;
(o) on 30 May 2018, senior personnel of AEC met with Mr Phemister and Mr Cameron Nolan, the Director, Precincts and Cities, of the Department of Premier and Cabinet. During that meeting, AEC was informed that Mr McCann's report had been provided to Mr Eccles, along with a report by Mr Phemister. During the meeting, Mr Phemister stated that the Premier would decide how to advance the development of the Precinct within a maximum of six weeks;
(p) on 25 July 2018, at a meeting between executives from AEC and Mr Phemister and Mr Nolan, AEC was informed that the Premier had determined to shift oversight of the project to the Minister for Major Projects, the Hon Jacinta Allan;
(q) AEC and the State engaged in a series of further meetings until November 2018. In late October or early November 2018, Mr Peter Armstrong[9] informed Mr Tabart of AEC that the Minister would not make a recommendation regarding the development until after the State election on 24 November 2018;
(r) between 21 December 2018 and 10 April 2019, AEC engaged in correspondence with Mr David Latina, Deputy Secretary, Business Engagement of the Department of Jobs, Precincts and Regions regarding the development of the Precinct;
(s) on 30 June 2019, Mr Latina informed AEC by letter that the State had made a decision "to not proceed further with the REOI process";
(t) on 7 August 2019, Mr Latina informed AEC by letter that the State intended to offer AEC the opportunity to participate in a debriefing process, notwithstanding that the State was not obliged to provide reasons for its decision to terminate the tender process; and
(u) AEC has taken a number of steps to obtain information and documents regarding the State's decision to terminate the tender process. AEC has not been provided with reasons for the State's decision to terminate the tender process.
37 Mr Dammery's affidavit exhibited a number of documents, including the correspondence referred to above.
38 The defendants relied on an affidavit sworn by Ms Michelle Power, a partner with Minter Ellison, the State's solicitors, on 4 December 2019. In her affidavit, Ms Power deposed, in summary, as follows:
(a) on 26 November 2019, Minter Ellison sent a letter to the solicitors for AEC, which stated, relevantly, as follows:
(i) the decision to terminate the tender process was a decision of a properly constituted committee of Cabinet;
(ii) the Committee's decision should be characterised as being a decision to decline to agree to the terms sheet submitted by AEC on 3 November 2017, and to cease negotiations with AEC regarding the development of the Precinct;
(iii) the Committee's decision is not amenable to judicial review, as it was a decision made by a committee of Cabinet, and the decision was to end a tender process, during which AEC was provided with documents which reserved the State's rights, including its right to discontinue the tender process at any time; and
(iv) the relief sought by AEC was unlikely to be of any commercial utility to AEC; and
(b) Minter Ellison's letter also foreshadowed, in the event that AEC elected not to discontinue the proceeding, the current application for orders that the proceeding be struck out and summarily dismissed would be made by the State.
39 The expression of interest submitted by AEC on 22 July 2014 was exhibited to Ms Power's affidavit, and provides as follows:
The AEC Group unconditionally waive any right to claim costs or to appeal against decisions arising from this process...
40 The terms sheet submitted by AEC on 3 November 2018 was also exhibited to Ms Power's affidavit. At clause 3.1, the terms sheet provides as follows:
The Preferred Developer [AEC] acknowledges that it has no claim (including without limitation as to costs) if the Minister and State do not proceed with the Project or enter into formal legally binding contracts or if the parties' negotiations in relation to the Terms Sheet end.
41 The defendants also relied on a further affidavit sworn by Ms Power on 31 January 2020 ('second affidavit'). In the second affidavit, Ms Power deposed, in summary, as follows:
(a) on 29 May 2015, the MPA wrote to AEC and asked that AEC's proposal remain open and binding for an additional three months beyond the period prescribed in the RFP documentation;
(b) on 23 February 2017, AEC wrote to MPA regarding an alternative proposal for financing railway infrastructure in the Precinct; and
(c) on 12 May 2017, the Minister informed AEC by letter that the alternative proposal could form a basis for negotiations over the remaining months of the exclusivity period.
42 Also exhibited to the second affidavit is a letter from Minter Ellison to the solicitors for AEC dated 31 January 2020, which stated, in summary, as follows:
(a) referring to the orders made on 16 October 2019, where Clayton JR ordered the State provide to AEC the 'critical documents relating to the decision under review, being the documents considered by the relevant decision maker or evidencing the decision', the letter stated that as the decision was made by a committee of Cabinet, the documents considered by the Committee or evidencing the decision are immune from disclosure by reason of public interest immunity; and
(b) the Committee has, however, determined it is in the public interest to 'disclose parts of the decision record in order to clarify any misapprehension as to what was decided which may have arisen from the letter to AEC dated 30 June 2019.'
43 The decision record was exhibited to the second affidavit.
44 In its outline of submissions filed on 31 January 2020, the State submitted that the decision to terminate the tender process was a decision of Cabinet, which is not amenable to judicial review. Accordingly, AEC's claims in this proceeding have no real prospect of success.
45 The State submitted that as a general principle, decisions of Cabinet are not amenable to judicial review, and referred to a number of features of the decision to end the tender process which reinforced its contention that the decision to terminate the tender process was not amenable to judicial review, including:
(a) the decision did not involve any exercise of statutory power;
(b) the decision was a large-scale commercial decision relating to the acquisition and development of a parcel of land which engaged a range of policy and budgetary considerations for the State, and required significant co‑investment by the State; and
(c) the decision was made in the context of an exchange of detailed tender documents and correspondence which governed the rights of the parties in relation to the tender process. At no time did AEC have anything more than a hope that negotiations might crystallise into a right at some future point in time.
46 The State submitted as follows (citations omitted):
Decisions of Cabinet are inherently political and generally involve matters of high public policy or political significance. As Bowen CJ said in Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd, "[i]t is to Cabinet that the highest decisions of policy affecting Australia are brought", which questions often "involve intense conflict of interests or of opinion in the community".
In Peko-Wallsend, the Full Court of the Federal Court of Australia held that a decision of Cabinet, to nominate certain land for inclusion on the World Heritage List, was not justiciable. This was despite the decision of Cabinet having consequences for the plaintiff company that held mineral leases over the land. The Court emphasised that Cabinet decisions were inapt for judicial review because they concern complex policy issues and because Cabinet is political accountable for its decisions.
The Chief Justice considered it would be "inappropriate" for the Court to "intervene to set aside a Cabinet decision involving such complex policy considerations...even if the private interest of the [lease-holders] was thought to have been inadequately considered".
Emphasising the role of Cabinet in the political system, Sheppard J said:
the Cabinet being essentially a political organisation...not usually referred to in any statute, there is much to be said for the view that the sanctions which bind it to act in accordance with the law and in a rational matter are political ones with the consequence that it would be inappropriate for the court to interfere with what it does.
Similarly, in Acquista Investments Pty Ltd v Urban Renewal Authority, a majority of the Full Court of the Supreme Court of South Australia held that a Cabinet decision concerning the sale of public land - like the Decision - was not amenable to judicial review. The Court held that such decisions are "quintessentially" for the Government, and that the electorate is the "final arbiter" Important to the Court's conclusion was the fact that the impugned decision was "complex, multifactorial and policy based" and was a "commercial decision involving wider policy considerations of the kind commonly taken by governments and government instrumentalities.
47 The State referred to a number of acknowledgments and disclaimers included in the RFP documentation and other documents created during the course of the tender process, which the State submitted made it plain that AEC had no right or expectation that it would ultimately be awarded the right to develop the Precinct. These documents included:
(a) the statements in the REOI issued in June 2014 that:
This REOI...does not create any legal rights or obligations (including any process contract) (cl 7.6);
The MPA reserves the right to elect not to proceed with the process at any time, and will not be liable for any loss or damage suffered by any respondent as a result (cl 7.7(d));
The MPA reserves the right to not provide respondents with any reason for any actions or decisions it may take in relation to this REOI process (cl 7.7(f)).
(b) in its initial response to the REOI in July 2014, AEC stated that it 'unconditionally waive[d] any right to claim costs or to appeal against decisions arising from this process';
(c) on 3 November 2014, AEC was provided with documentation which included the following terms and conditions:
Respondents acknowledge that the lodgement of a Proposal or other action pursuant to this RFP does not create any legal rights or obligations (including any process contract), with the exception of any formal contractual documents executed with the Successful Respondent (cl 11.1)
MPA reserves the right to ...withdraw, suspend or terminate the RFP process at any time; ...terminate the further participation of any Respondent or decline to select a Successful Respondent (cl 11.13(e) and (f))
Respondents are not entitled to enquire into the basis of the State's decision to accept or reject any Proposal (cl 11.17).
(d) by lodging a proposal in response to the REOI, AEC warranted that it 'will not make any claim against MPA, its employees or consultants, or any person involved in the RFP process in relation to the selection of a successful Respondent or any other matter in connection with the RFP ... ';
(e) in a letter to AEC dated 27 October 2015, the Minister for Finance said:
The appointment of AEC as the preferred bidder...does not fetter the State's rights whatsoever from acting in accordance with the terms set out in the Request for Expression of Interest and Request for Proposal documentation. The State makes no commitment to proceed with the sale or enter any legally binding documentation with AEC following the further due diligence period.
(f) in a letter to AEC dated 15 August 2016, the Minister for Finance said:
As previously stated, the State has not made any commitment to enter into any agreement with AEC in relation to the Major Development Precinct. Nothing in this letter or conveyed during the milestone framework fetters the State's absolute discretion to determine how it wishes to proceed with AEC and the Major Development Precinct process, and is all subject to relevant Government approvals.
(g) in a letter to AEC dated 15 August 2016, the Minister for Finance said:
If the State and AEC do not achieved (sic) mutual resolution of the threshold and other commercial matters within three months, and a detailed terms sheet which is capable of being converted to a development agreement within the exclusivity period, the State reserves its rights including to elect to withdraw from the sales process (in its absolute discretion). Finalising a terms sheet and entering into the development agreement remain subject to Government approvals typical for this type of transaction.
(h) further, the terms sheet provided by AEC to the State on 3 November 2017:
(i) contemplated that the State may not approve the transaction and that the Minister and State 'will not be under any obligation to proceed with the Project, or to enter into any formal legally binding contracts in respect of the Project';
(ii) contained an acknowledgement by AEC that 'it has no claim (including without limitation as to costs) if the Minister and the State do not proceed with the Project or enter into formal legally binding contracts or if the parties' negotiations in relation to the Terms Sheet end; and
(iii) recognised that for the development of the Precinct to succeed, the project required 'Government approvals'.
48 The State submitted that Cabinet is not a body recognised by statute, in contrast with the Governor-in-Council or the Executive Council, upon which many statutes confer powers and duties. Further, it was not necessarily the case that a decision made following the deliberation of Cabinet must necessarily ultimately be a decision of the Governor-in-Council or the holder of a recognised office. The State contended that the relevant decision was taken collectively by the Cabinet, and no statute conferred any role or powers upon the Governor-in-Council or any Minister in relation to the tender process. The State submitted that the courts have traditionally been deferential to the decision making process of Cabinet, which is private and collective, compared with, say, decisions made by a Minister under an enactment.
49 The State submitted that, while in some limited contexts a decision made in the exercise of statutory power following a recommendation or advice of Cabinet has been subject to judicial review, such review is not appropriate in the present case, as:
(a) the decision was made by Cabinet as opposed to another entity following the advice or a recommendation from Cabinet; and
(b) the present case does not involve any of the special features present in those other contexts, including that:
(i) the decision does not involve the exercise of statutory power regarding the personal liberty of an individual; and
(ii) the decision does not involve the exercise of a statutory power with respect to an extant proprietary interest.
50 The State submitted that it was not necessary for the State to claim a blanket immunity for decisions of Cabinet: it is sufficient to show that the decision in question is not amenable to judicial review. The question is not whether Cabinet is required to act in accordance with the law: rather, the question is whether the decision to end the tender process is subject to the supervisory jurisdiction of this Court.
51 The State referred to the decisions of the Full Courts of the Federal Court and the Supreme Courts of South Australia respectively in Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd ('Peko-Wallsend')[10] and Acquista Investments Pty Ltd v Urban Renewal Authority ('Acquista').[11] In both cases, the challenges to the relevant Cabinet decisions were unsuccessful, by reason of considerations which the State submitted are also applicable to the present case.
52 The State submitted that the decision in FAI Insurances Ltd v Winneke[12] ('FAI Insurances') is distinguishable from the present case, as the decision-maker in FAI Insurances[13] was the Governor-in-Council, not the Cabinet, the decision was made pursuant to a statutory power, and the relevant statute identified criteria for the Governor-in-Council to consider which related to the applicant's personal circumstances, rather than matters of policy. The State submitted that the Governor-in-Council's decision was held to be justiciable on the basis that it was 'mundane' or 'routine'.[14] Accordingly, the State submitted, the decision in FAI Insurances[15] does not assist AEC in establishing that the decision of the Committee in the present case is amenable to judicial review.
53 The State's submissions observed that the Originating Motion does not identify any particular decision or conduct antecedent to the decision of the Committee which might be subject to review, and submitted that the current litigation should not be used as a fishing expedition to identify some earlier decision or conduct that might be capable of being judicially reviewed.
54 The State submitted that, if summary judgment is not granted, the Court should strike out paragraph 26 of the Originating Motion on the basis that the paragraph misdescribes and misunderstands the Decision and therefore does not disclose a cause of action. The State further submitted that the Court should strike out paragraph 28 of the Originating Motion on the basis that is scandalous, frivolous or vexatious in the absence of any particulars of bias.[16]
55 The State also submitted that it was not necessary or proper for the first, third and fourth defendants to be parties to the proceeding, as none of those defendants have exercised any jurisdiction that is challenged in the proceeding. The State submitted that, as the decision was made by a committee of Cabinet, the only necessary and proper defendant is the State.
56 As for AEC's application for discovery and interrogation, the State submitted that the discovery being sought is in the nature of preliminary discovery, and that it is impermissible for AEC to be allowed to use this proceeding as a vehicle to obtain preliminary discovery. The State submitted that there is no existing question in the proceeding that would be aided by the discovery sought, and in any event, documents recording Cabinet deliberations or prepared for the purposes of Cabinet deliberations would be immune from disclosure by reason of public interest immunity.[17] The State submitted further that the Court ought not let a late application for discovery and interrogatories derail the State's application for summary judgment.
57 Senior counsel for the State observed that, while AEC has conceded that the Originating Motion needs to be amended, the Court has been given no indication of how AEC would seek to amend its grounds of review. The State submitted that the proceeding should not be kept on foot simply to allow AEC the opportunity to 'have another go to think of some other ideas to improve those grounds'.
58 AEC submitted that the decision which is the subject of this proceeding cannot be properly characterised as a single decision of a committee of Cabinet, and consequently, even if the State's submissions regarding the non-justiciability of Cabinet decisions were accepted, that alone could not form the basis for a grant of summary judgment. AEC submitted that it is enough to dismiss the summary judgment application if there is uncertainty about two matters: whether a Cabinet decision is amenable to judicial review, and whether there needs to be a trial to elicit the facts upon which such a conclusion should be drawn. In particular, the decision record, which suggests that the Committee formally approved a decision that had been already made, highlights the need for a factual inquiry in relation to the Committee's decision and the process leading up to it, and justifies AEC's application for discovery and interrogation.
59 AEC submitted that the State was incorrect in its characterisation of the decision to end the tender process as being a decision which is not amenable to judicial review by reason of it being a decision of Cabinet. AEC submitted that the State's assertion that the relevant decision is not justiciable is wrong, because:
60 AEC submitted that the distinction between decisions of Cabinet and decisions made by the Governor or Governor-in-Council is a false distinction, as the Cabinet does not have a juridical personality. AEC's submission went on to say that, accordingly, any decision made following deliberation of Cabinet must be a decision made by the Governor-in-Council or the holder of a recognised office, such as a Minister.
61 AEC submitted that decisions of the executive branch of government do not enjoy wholesale immunity from judicial review, and the question of whether a decision is amenable to judicial review requires consideration of the subject matter and the basis upon which AEC seeks to impugn the decision. AEC submitted as follows (footnotes omitted):
As to the subject matter of the decision, Courts have more readily found that controversies about decisions that involve international treaties or national security are non-justiciable.
On the other hand, controversies about more mundane matters, including the grant of approval to a commercial operator for a necessary part of its business, are more likely to be justiciable.
There is nothing in the subject matter of the present case that makes it more like a case of national security or international relations, along the lines of Peko-Wallsend, such that it should be non-justiciable. On the contrary, the present case is more analogous to FAI v Winneke, in which the question of whether natural justice had been afforded to a company in the process of Cabinet deciding not to renew the company's approval as a worker's compensation insurer was held to be justiciable.
62 AEC submitted that the controversy in the present case is primarily a question of procedural fairness, which is a matter that is readily justiciable, even where the decision concerned is a Cabinet decision.
63 AEC submitted further that decisions or conduct antecedent to the Cabinet decision, such as the provision of advice by the VPA to the Committee or the relevant Minister pursuant to its statutory functions will attract an obligation of procedural fairness, and thus be amenable to judicial review.
are matters of significance that fall to be determined by this Court after the benefit of fully developed written submissions, oral argument and the provision of further critical documents by the defendant parties which remain outstanding. Certainly, at a minimum, the Plaintiff's case does not lack a real prospect of success, such that summary judgment is justified.
Moreover, the Plaintiffs ought to be able to replead the Originating Motion in light of the surprising turn of events here: the State claims that its own description of the decision in correspondence to the Plaintiff in June 2019 was wrong. The disclosed extract of the Cabinet expenditure review subcommittee raises more questions than it answers about who made how many decisions and when in relation to this aborted major project. The State is yet to make necessary disclosures about antecedent processes and decisions.
The uncertainty of the question of the circumstances in which decisions of Cabinet are amenable to judicial review is in itself sufficient reason to dismiss the application for summary judgment.
65 Accordingly, AEC submitted that there is no overarching protection which prevents parties from seeking judicial review of Cabinet decisions. AEC submitted that I am not bound by, and should not follow the decision of the majority of the Full Court of the Supreme Court of South Australia in Acquista,[18]as its precedential value is doubtful given that two judges of the High Court granted special leave to appeal with respect to that decision.[19]
66 AEC submitted that its contention that the State had denied it procedural fairness makes the present case factually distinct from the circumstances faced by the Court in Acquista.[20] AEC further submitted that breaches of procedural fairness can occur during the course of preliminary steps in a process, and not just in the course of making the ultimate decision. AEC submitted that the State has not adduced evidence to exclude the possibility that there were antecedent decisions prior to the decision of the Committee to end the tender process.
67 AEC submitted that, notwithstanding AEC's acknowledgement in the terms sheet and other documents that it had no right to make a claim against the State, such acknowledgements do not preclude AEC from seeking judicial review of the exercise of government power. AEC submitted that, given the statements in the tender documentation refer to AEC not being able to appeal any decision of the State with respect to the tender process, the Court ought not conclude that AEC cannot seek judicial review of the decision to end the tender process.
68 Further, AEC submitted that while the State asserts that no other decision was made, the State did not provide evidence to support this assertion. Accordingly, the Court should draw an inference that other relevant decisions were made, and allow a trial to take place after a further exchange of relevant material, including the documents and answers to interrogatories sought in its application. AEC foreshadowed that it would challenge any claim for public interest immunity over any documents discovered by the State.
69 Finally, AEC submitted that it would be premature to remove any defendant from the proceeding in the absence of any evidence from the State as to who was responsible for advising the Committee with respect to the tender process.
70 The Originating Motion identifies the following grounds of review:
(a) jurisdictional error, on the basis that the State failed to comply with the principles referred to in the REOI , being principles which would govern the State's conduct of the tender process, including integrity, transparency, and fairness ('probity principles');
(b) denial of procedural fairness, on the basis that, among other things, AEC was not given an opportunity to be heard on matters that may have been adverse to it prior to the Committee making the decision to end the tender process;
(c) the decision to end the tender process lacked an intelligible justification, because in the absence of reasons for the termination of the tender process, it can be inferred that the termination of the tender process may be beyond power, unreasonable or unlawful; and
(d) the State's refusal to give reasons, as required by s 8(1) of the ALA.
71 In order for summary judgment to be granted in its favour, the State must show that AEC has no real prospects of success on any of the above grounds. The parties addressed me on a global basis, given the State's position that the decision to end the tender process was not justiciable at all, and given AEC's position that it may seek to amend or not press some grounds of review following discovery and interrogation. I will also address the application on a global basis, but will also make some observations regarding the specific grounds of review identified by AEC in the Originating Motion.
72 As noted above, AEC has conceded that it needs to amend the Originating Motion in order to progress its claims that the Committee's decision (or some yet unknown antecedent decision) ought to be quashed. The real issue in this application is whether I should order that the State provide further discovery and/or answer interrogatories in order to enable AEC to assess and possibly reformulate its claim, or whether I can reach a concluded view, based upon the material already before me, that AEC's claims in this proceeding have no real prospects of success, and that there is no other reason why the matter should proceed to trial.
73 In my view, there are negligible prospects of there being any further information able to be produced by the State which would cause me to alter my view that AEC's claims in this proceeding have no real prospects of success. For present purposes I am prepared to accept, contrary to the submissions of the State, that Cabinet decisions are reviewable, albeit only in very limited circumstances. However, critically, I consider that the nature of the decision is such that the prospects of the Court intervening to overturn the decision to terminate the tender process is, if not zero, close enough. As noted by Allsop P in Stewart v Ronalds,[21] 'central to the identification of the kinds of decisions amenable to review by the courts is the suitability of the subject for judicial assessment and, in particular here, whether the assessment of the legitimacy or otherwise of the decision depends on legal standards or by reference to political considerations'.[22]
74 As observed by senior counsel for the State in her submissions, the proposed development of the Precinct was 'a very significant project that involved complex strategic policy and budgetary considerations', including education policy, employment policy, town planning issues, and public transport policy. Taking the public transport implications of the development of the Precinct alone, AEC's proposal for the development of the Precinct involved the diversion of a major suburban railway line, which of itself would have involved significant engineering, land use and financial considerations. If anything, the strategic importance and complexity of the proposed development of the Precinct was greater than the development project that the Court in Acquista[23] was concerned with, which was an industrial development rather than the establishment of, in effect, a substantial new suburb.
75 That the decision to terminate the tender process may have been based upon recommendations of a particular Minister, or other government officials or statutory bodies does not alter the fundamental character of the decision, or its inherently political nature. While the decision to end the tender process is not political in the partisan sense, it is political in the sense that it involves significant policy choices regarding land use, educational and employment priorities, and the allocation of public funds. The courts are not well equipped to evaluate those policy choices. The reasons of the majority in Acquista[24] are particularly salient to the current application. Their Honours stated as follows:
It is not the role of this Court, nor is this Court equipped to adjudicate on the validity of the reasons which motivated the Cabinet to approve the proposal. As mentioned, we cannot assume that all the material before the Cabinet or the arguments made for and against the proposal are before this Court. In our opinion a court is not well placed to assess a decision which is a commercial one but which involves wider questions of policy and strategy. The inability of this Court to assess the decision in all its aspects tends towards a conclusion that the decision to enter into the contract was not one susceptible of judicial review, at least on account of legal unreasonableness.[25]
The decision to enter the contract raised, at least, the following issues: the strategic importance of the land to the State; employment consequences for the northern suburbs of Adelaide; the promotion of certain industries in the State; consequences for general revenue; the drawback that the transaction was not to go to market; and, competition issues. The decision was complex, multifactorial and policy based. There are no objective criteria against which the Court is able to measure whether the decision was reasonable or commercially prudent in terms of the State's long-term economic, industrial and employment objectives.[26]
77 Of course, the decision in Acquista[27] was concerned whether the Cabinet's decision was legally reasonable, there being no assertion that the Cabinet had failed to afford procedural fairness. Here, AEC raises such an assertion in its Originating Motion, submitting that its position is analogous to that of the plaintiff in FAI Insurances,[28] where the High Court held that the Governor-in-Council was obliged to afford procedural fairness to the holder of a licence to offer workers' compensation insurance.
78 I disagree. I do not consider that the decision in Acquista[29] is distinguishable from the current case by reason of there being a ground of review based upon an asserted duty to afford procedural fairness. While the courts may be more likely to entertain an application for review of decisions of the executive on procedural fairness grounds, as opposed to, say, whether a decision is legally reasonable,[30] ultimately, the authorities make it clear that it is the nature of the decision itself which is determinative of whether a decision is amenable to judicial review. In Stewart v Ronalds,[31] the New South Wales Court of Appeal held that a decision to remove a Minister was not amenable to review on procedural fairness grounds, because of its inherently political nature, notwithstanding the considerable personal impact of the relevant decision upon the Minister. In contrast, the reasons of the individual judges in FAI Insurances[32] distinguished the character of the relevant decision before the court in that case (being personal to the plaintiff) from decisions involving policy considerations.[33]
79 In the current case, while AEC was clearly affected by the decision of the Committee to end the tender process, the decision was not 'personal' to AEC, as was the decision with which the court in FAI Insurances[34] was concerned, where the Governor-in-Council was required to consider the financial capacity of the licence holder, and no broader policy issues arose. Given the size and scope of the proposal to develop the Precinct, the personal interests of AEC, even if it did have a legitimate expectation of a right to be heard (which I doubt), must be subsidiary to the numerous and complex policy considerations facing the State when considering proposals for the development of the Precinct.
80 Senior counsel for AEC submitted that I should not consider myself to be bound by the reasoning of the majority in Acquista,[35] given that the decision was made in a different jurisdiction, and the High Court granted the plaintiff in Acquista[36] special leave to appeal against the majority decision. The grant of special leave indicates that the High Court was attracted by the findings of the dissenting judgment of Debelle ACJ in Acquista,[37] who would have upheld the decision of the judge at first instance that the decision in question was legally unreasonable. Accordingly, AEC submitted, the matter was finely balanced.
81 Again, I disagree. First, the High Court has made it clear on several occasions that a court in one Australian jurisdiction should follow the decisions of an intermediate appellate Court in another jurisdiction, unless it considers that the decision of the intermediate appellate court was plainly wrong.[38] I do not consider that the majority opinion in Acquista[39] was plainly wrong: indeed, it is consistent with a long line of authority which evidences a reluctance on the part of the judicial branch of government to interfere with what are essentially political decisions. Furthermore, the position in Acquista[40] is distinguishable from the current case in one significant respect, in that what troubled Debelle ACJ in Acquista,[41] and the two High Court judges who heard the special leave application, was that it seemed to be accepted that the Cabinet had failed to comply with the conditions laid down by statute for the disposal of Crown land. As observed by Keane J during the course of the hearing of the application for special leave '...the real question is whether the disposition of Crown land has occurred in accordance with the statutory provisions which regulate its disposition".[42]
82 In the current case, the decision to end the tender process was not governed or empowered by statute: the State is empowered to deal with the land owned by it in the Precinct unconstrained by any statutory preconditions or requirements. Accordingly, a key feature in Acquista[43] which may have or could have attracted judicial intervention is absent in the current case.
83 Further, I also disagree with AEC's submission that it is inappropriate to grant summary judgment, because the question of whether the State's decision to end the tender process is justiciable should be determined at a trial, when all of the relevant material is before the Court about what was the operative decision, and who made it. I do not see how the provision of additional information would assist, or even be available to assist, AEC in the current case. While the Committee may have received advice from Ministers or other officials, ultimately the decision was that of the Committee. The correspondence makes it clear that the proposal for the development of the Precinct attracted the attention of the highest level of the State Government, such that it is unsurprising that the final decision was made by a committee of Cabinet.
84 In any event, any documents which were before the Committee would almost certainly be immune from disclosure by reason of s 130 of the Evidence Act 2008 (Vic) ('Act'). While s 130 of the Act permits the balancing of the public interest in disclosure of documents with the public interest in preserving the confidentiality of documents which relate to matters of state, the authorities make it clear that, in the case of documents prepared for the purpose of the deliberations of Cabinet, it will be rare that the public interest in disclosure outweighs the public interest in the maintenance of confidentiality, particularly in civil proceedings. The authorities provide that the interpretation and operation of s 130 of the Act are to be guided by the principles underpinning the common law doctrine of public interest immunity, and the common law has always shown particular deference to the confidential status of Cabinet documents.[44]
85 In addition to the decision of the High Court in _FAI Insurance_s,[45] AEC relied upon the decision of the Court of Appeal in Victoria v Master Builders' Association,[46] and the decisions of the Full Court of the Federal Court in Aye v Minister for Immigration and Citizenship and ors[47] and Chetcuti v Minister for Immigration and Border Protection[48] in support of its contention that the State's decision to end the tender process is, or may be, justiciable. However, in my view, those decisions are of limited assistance to AEC. The decision in Victoria v Master Builders' Association,[49] did no more than confirm the determination in Peko - Wallsend,[50] and the decision of the New South Wales Court of Appeal in Macrae v Attorney-General (NSW)[51] that decisions made by the executive government in the exercise of its prerogative powers (as opposed to powers conferred upon the executive by statute) are, if the subject matter of the decision is justiciable,[52] subject to judicial review in accordance with traditional administrative law principles. Their Honours held that the decision of a government task force (in that case, a decision to publish a 'black list' of certain building contractors) was amenable to judicial review if made in the exercise of a public duty and affecting the rights, interests, or legitimate expectations of building contractors.
86 In Aye v Minister for Immigration and Citizenship and ors,[53] the majority of the Full Court found that a decision by a Minister to cancel the visa of a daughter of a senior figure in the government of Myanmar was not justiciable, because it involved the application of foreign policy. I understand AEC's reliance upon this decision to be based upon a submission that decisions involving national security and foreign policy are the only classes of government decisions which are not justiciable. However, my review of the reasons of each judge (who agreed on the relevant principles, if not their application to the case before them), suggests that all that this decision stands for (apart from the principle that it is the subject matter of the decision, rather than the source of power to make the decision, which determines whether a decision is justiciable)[54] is that decisions concerning the formulation and implementation of the Commonwealth's foreign policy are inherently not justiciable. However, the decision could not be construed as limiting the subject matter which is not justiciable to decisions concerning foreign policy and national security.
87 Finally, in my view, the decision in Chetcuti v Minister for Immigration and Border Protection[55] is not of any particular assistance to AEC in the current application. In that case, the majority held that the trial judge was in error in finding that the Minister had sufficient time to give proper, genuine and realistic consideration to the materials before him prior to making a decision to cancel a visa. The majority held that a Jones v Dunkel[56] influence should be drawn from the Minister's failure to call a departmental official to give evidence regarding when the relevant materials were before the Minister.
88 I understand AEC to be submitting that the current case should proceed to trial, as I should draw an adverse inference (from the State's failure to disclose the documents relied upon by the Committee in making its decision to end the tender process) to the effect that other decisions may have preceded the Committee's decision, or that the decision was made beyond power.
89 Setting aside the question of whether the principles in Jones v Dunkel[57] have full application in an application of the current kind, that contention ignores the fact that a Jones v Dunkel[58] inference only arises when there is an unexplained failure to adduce evidence. Here, the State has explained that it has not produced documents in addition to the decision record, because any such documents would be immune from disclosure by reason of public interest immunity. In any event, the decision in Chetcuti v Minister for Immigration and Border Protection[59] and other like cases really turn on their own facts.
90 Accordingly, none of the decisions relied upon by AEC detract from the fundamental principle that the amenability of a decision to judicial review is dependent upon its nature and subject matter, and decisions involving broader policy considerations rather than the particular circumstances of individuals are to be judged by political considerations, rather than assessed in accordance with legal standards.
91 As noted above, in this application the parties addressed AEC's grounds of review globally, as is appropriate, given that the State's primary submission, with which I agree, is that the Committee's decision to end the tender process is not justiciable by reason of its subject matter. However, in what follows there are some brief observations upon AEC's individual grounds of review.
92 Turning first to the contention that the decision to end the tender process was outside the parameters of the REOI process and was beyond jurisdiction, the one aspect of AEC's complaint falls away with the proper characterisation of the decision established by the decision record. Further, to the extent that the decision to end the tender process was beyond power because the State failed to adhere to the probity principles, it should be noted that, to the extent that it is said that the State owes a duty to afford AEC substantive fairness by reason of the reference to the probity principles in the tender documentation, such an obligation is not recognised by Australian law. As observed by the learned authors of Judicial Review of Administrative Action:[60]
By contrast [with the position in England], our High Court is against the deployment of judicial review to compel government to adhere to its substantive promises. It will not hold the bureaucracy to the non-procedural terms of an instrument or promise that is not statutory, because that would be giving it binding status.[61]
93 Accordingly, even if the subject matter of the decision to end the tender process was considered to be justiciable, the absence of any obligation on the part of the State to afford substantive unfairness is probably sufficient to dispose of this proposed ground of review, at least insofar as it seeks to rely upon the probity principles.
94 Similar observations can be made with respect to the procedural fairness ground of review, again at least insofar as it seeks to rely upon the probity principles. To the extent that AEC relies upon an entitlement to procedural fairness based upon its status as preferred tenderer, I refer not only to the nature and subject matter of the decision to end the tender process as precluding judicial review, but also my discussion regarding the question of whether AEC had a legitimate expectation giving rise to a right to be heard in paragraphs 107 and 108 below.
95 Further, there is no reason to consider, on the basis of the material before me, whether the disclosure of any additional documents in the possession of the State would shed any light on the question of whether the State was required to afford AEC a right to be heard. Most of the key documents concerning the tender process are in evidence, including the formal correspondence between the parties. The nature of the decision is clear from the evidence. It is also clear that AEC has spent considerable time and resources in participating in the tender process, for no commercial return, and thus was adversely affected by the decision to end the tender process. There is no dispute between the parties that the State did not provide AEC with an opportunity to make submissions prior to the Committee making the decision to end the tender process. No documents or other evidence concerning the internal deliberations of the State concerning the tender process or the plans for developing the Precinct could shed light on the question of whether the State owed a duty to afford AEC procedural fairness, or the content of that duty.
96 As for the contention that the decision to end the tender process lacks an intelligible justification, again, part of this ground is rendered redundant by the disclosure of the decision record. To the extent this ground relies upon the probity principles, I repeat my observations above. And, while I have found that the decision to end the tender process is not amenable to judicial review generally, the reasoning behind characterising certain kinds of decisions as not being to amenable to judicial review comes into particular focus where the proposed ground of review concerns the reasonableness of a decision, or whether a decision lacks an intelligible justification.
97 Finally, a significant complaint of AEC is that the State has refused to provide reasons for its decision to end the tender process, and AEC has sought relief under s 8(4) of the Administrative Law Act 1978 (Vic) in that regard. Neither party addressed this aspect of the Originating Motion directly in their submissions, but I assume from the State's submissions generally that the State contends that it cannot be compelled to give reasons for making a decision which is not of itself amenable to judicial review.
98 Section 8 of the ALA provides as follows:
Reasons for decision to be furnished by tribunal on request by party concerned
(1) A tribunal shall, if requested to do so by any person affected by a decision made or to be made by it, furnish him with a statement of its reasons for the decision.
(2) The request may be made orally or in writing to the tribunal or to any member or officer thereof but must be made either before the giving or notification of the decision or else within thirty days after the decision has come to the knowledge of the person making the request and in any event not later than ninety days after the giving or notification of the decision.
(3) The statement of reasons shall be in writing and furnished within a reasonable time.
(4) The Supreme Court, upon being satisfied by the person making the request that a reasonable time has elapsed without any such statement of reasons for the decision having been furnished or that the only statement furnished is not adequate to enable a Court to see whether the decision does or does not involve any error of law, may order the tribunal to furnish, within a time specified in the order, a statement or further statement of its reasons and if the order is not complied with the Court, in addition to or in lieu of any order to enforce compliance by the tribunal or any member thereof, may make any such order as might have been made if error of law had appeared on the face of the record.
(5) Notwithstanding anything in this section a tribunal shall not be bound to furnish a statement of reasons, and the Court shall not be bound to order it to do so, where to furnish the reasons would, in the opinion of the Court, be against public policy, or the person making the request is not a person primarily concerned with the decision and to furnish the reasons would, in the opinion of the Court, be against the interests of a person primarily concerned.
(6) Nothing in this section applies to the Victorian Civil and Administrative Tribunal or the Business Licensing Authority.
99 'Tribunal' is defined in s 8 of the ALA as follows:
Definitions
In this Act unless the context or subject-matter otherwise requires -
'decision' means a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence and includes a refusal or failure to perform a duty or to exercise a power to make such a decision;
'person affected' in relation to a decision, means a person whether or not a party to proceedings, whose interest (being an interest that is greater than the interest of other members of the public) is or will or may be affected, directly or indirectly, to a substantial degree by a decision which has been made or is to be made or ought to have been made by the tribunal;
'tribunal' means a person or body of persons who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice, but does not include -
(a) a court of law or a tribunal constituted or presided over by a Judge of the Supreme Court; or
(b) a Royal Commission, Board of Inquiry or Formal Review within the meaning of the Inquiries Act 2014.
100 Accordingly, if, in arriving at the decision to end the tender process, the Committee is not required to afford AEC procedural fairness, the Committee cannot be compelled to give reasons. The obligation to give reasons is inextricably linked with the question of justiciability.
101 Apart from the decision in FAI Insurances,[62] there has been limited judicial consideration of whether bodies at the apex of the State (such as the Governor-in-Council), are 'tribunals' within the meaning of the ALA. In a decision delivered not long after the decision of the High Court in FAI Insurances,[63] Orientimex Australia Pty Ltd v City of Melbourne and ors ('Orientimex'),[64] Fullagar J held that the Governor-in-Council, when making a decision to 'call in' a planning appeal under the Town and Country Planning Act 1961 (Vic) was not a tribunal within the meaning of s 2 of the ALA, and was therefore not required to give reasons under s 8 of the ALA. His Honour did state that, in cases involving the renewal or refusal of a licence, the person who made the decision antecedent to the Governor-in-Council may be required to afford the licence holder procedural fairness, but not the Governor-in-Council.
102 The decision in Orientimex[65] was concerned with the particular position of the Governor-in-Council, given the Governor only acts on the advice of ministers, and as such, is not directly comparable with whether decisions of Cabinet are reviewable. However, the following remarks are relevant to the current case:
I should not decide whether the word 'may' where first occurring in s 8(4) of the Act, is permissive or mandatory although I observe the presence in s 8(5) of the words - 'and the Court or Judge shall not be bound to order it to do so'. But if the word 'may' were mandatory, which I take leave to doubt, then I would regard that as a very strong reason indeed for holding that the Governor was not a 'tribunal' within the meaning of the Act.
This court cannot go behind the minister's certificate pursuant to s 41(3) of the PAB Act, that the appeal raises a major issue of policy, and the court should in any event refrain from ordering a statement of reasons of the Governor or minister, or cabinet, on a matter of policy.
An order for reasons is in the nature of mandamus, cannot and should not be made against the Governor. The court should not make a mandatory order which it is not willing and able to enforce by attachment.
The considerations against a court of law ordering the Governor in Council to do a positive act, or to order a minister of the Crown to disclose the reasons for a cabinet decision are, in my opinion, so strong that I would not (as at present advised) make such an order unless express words of a statute authorised the order by mentioning the Governor in Council or the minister expressly as the object of the order, or unless I felt compelled to do so by binding authority from which there was no possible escape.[66]
103 I have not, perhaps unsurprisingly, located any authority in which the Cabinet, or a committee of Cabinet, has been held to be a 'tribunal' within the meaning of s 2 of the ALA. Perhaps the closest analogy to the current case is to the contrary: in Croft v Macnamara,[67] Beach J held that a Minister, or his delegate, did not owe a tenderer seeking to obtain mineral exploration licences procedural fairness, and was therefore not a tribunal within the meaning of s 2 of the ALA.
104 Accordingly, on the basis of my earlier conclusion that the decision to end the tender process is not justiciable, AEC's claim for relief under s 8 of the ALA must fail.
105 In conclusion, I consider that AEC has no real prospects of success of making good its claims in this proceeding, and I accept the State's contention that this proceeding should not be used as a vehicle to further investigate the decision making process with respect to the development of the Precinct and the tender process. Given that even AEC accepts that its claim, as presently framed, needs amendment, it seems to me that AEC, in seeking discovery and orders for interrogation, is not seeking discovery in aid of a case, but rather, to establish whether it has a case at all. That makes its current application more akin to an application for preliminary discovery. While the threshold for granting preliminary discovery is fairly low, a powerful discretionary consideration in such an application would be the utility of making such an order, given that the documents sought are likely to be immune from disclosure by reason of public interest immunity.
106 My conclusion that the decision to end the tender process is not amenable to judicial review is based upon the nature of the decision itself, rather than the identity of the decision maker. However, the fact that the decision maker was the Committee bolsters my conclusion that AEC's claims in the proceeding (however they might be framed or reframed) have no real prospects of success.[68] Further, there is no other reason why the matter should proceed to trial. Indeed, there are two other considerations which may, on their own, have been insufficient to lead to a conclusion that summary judgment ought to be granted, but are of themselves significant obstacles to AEC obtaining the relief it seeks in this proceeding.
107 First, whilst it is not necessary for me to conclusively determine the legal effect of the various disclaimers and acknowledgements in the tender documentation relied upon by the State in seeking summary judgment, at the very least those acknowledgements and disclaimers would tell against any claim on the part of AEC that it had a legitimate expectation which would give rise to a right to be heard prior to the Committee making its decision to end the tender process. It is not necessary for present purposes to traverse the extensive jurisprudence about when a party might be held to have a legitimate expectation of a right to be heard prior to a decision being made which might affect their interests.[69] However, there is much to commend the State's submissions that: 'Hope, of itself, is not sufficient to ground an expectation that will attract legal consequences.'
108 While the authorities generally speak with one voice regarding the legitimate expectations of existing licence holders and parties to current contracts with public bodies to a right to be heard before those licences or privileges are withdrawn, or before those contracts are terminated or not renewed, it is rare for those who aspire to be granted a licence or privilege, or to enter into a contract, to have a recognised legitimate expectation which gives rise to a right to be heard.[70] In my view, AEC falls within the latter class, and that view is only reinforced by the acknowledgements and disclaimers peppered throughout the tender documentation.
109 And, whilst this issue was not the subject of any submissions, it seems to me that, in the current environment in particular, there is a real question mark over the utility of this proceeding, even if the decision to end the tender process is justiciable, and even if AEC was held to have a legitimate expectation of being heard in relation to the decision not to proceed with the development of the Precinct. If the decision not to proceed with the Precinct was quashed, what would follow? This Court could not substitute its own decision for that of the Committee. It could hardly direct the State to proceed with a major urban development proposal. All the Court could do is direct that the State give AEC an opportunity to submit why the State should reverse its decision to end the tender process, or to continue to negotiate with AEC about the terms sheet. Even during the state of affairs which prevailed at the time that this proceeding was issued, or indeed when this application was heard,[71] it is difficult to see how the State will alter its position, given the size, scope, nature, and cost of the proposed development of the Precinct, let alone in the current environment, where the economic and demographic assumptions underpinning AEC's proposed development of the Precinct have no doubt been fundamentally and possibly irrevocably undermined.[72]
110 While the current circumstances could not have been predicted by AEC at the time of issuing this proceeding, and are not of themselves a basis for granting summary judgment, the current environment not only raises serious question marks over the ultimate utility of the relief sought by AEC in this proceeding, but also illustrates and emphasises why decisions of this character are not justiciable, and the sound reasons why decisions of an inherently strategic and political nature are not suitable for or amenable to judicial review. However, for the avoidance of doubt, I would have granted summary judgment regardless of the circumstances.
111 In conclusion, this proceeding may be one of the relatively rare cases which may have survived a summary judgment application prior to the enactment of s 63 of the Civil Procedure Act 2019 (Vic), but where close analysis demonstrates that AEC's claims in the proceeding have no real prospect of success. It may be that each of the propositions advanced by AEC are (probably faintly) arguable, but the effect of compounding the low prospects of success of each of the propositions that AEC needs to make good to have a right to obtain the relief it seeks against the State means that the proceeding has no real prospects of success. Taking, for example, AEC's claim that the State failed to afford AEC procedural fairness prior to making the decision to end the tender process, AEC would need to establish:
(a) a decision of Cabinet is reviewable (which would only be found in limited circumstances);
(b) the subject matter of the decision is reviewable (unlikely, because of the strategic, commercial and policy considerations involved);
(c) that AEC had a legitimate expectation that conferred upon it a right to be heard, notwithstanding the fact that it held no existing licence or privilege over and above being a preferred tenderer, the decision to end the tender process did not involve the exercise of a statutory power, and against the face of the various acknowledgements and disclaimers in the REOI, the RFP documentation and the terms sheet;
(d) even if AEC did have a right to be heard, that it was not precluded from seeking judicial review by reason of the various acknowledgements and disclaimers in the tender documents; and
(e) even if all of the above hurdles could be overcome, the likelihood of the Court exercising its discretion to provide AEC with a remedy which was of any commercial utility would, in all of the circumstances, be quite slim.
112 Similarly, with respect to AEC's action to compel the Committee to give reasons, AEC would need to establish that the Committee was a tribunal within the meaning of the ALA, that is, that the Committee was required to afford AEC procedural fairness, and that the Court was not precluded from ordering that reasons be furnished on public policy grounds. Further, the hurdles facing AEC in establishing that the Committee had acted beyond jurisdiction (where it was not exercising any power conferred upon it by statute, and it is the owner of the land in the Precinct), or that the decision was legally unreasonable must be even higher.
113 Finally, while I have observed that no further documents or evidence is required in order to determine the State's application for summary judgment in its favour, for completeness, I will dismiss AEC's application for specific discovery and to administer interrogatories for the examination of the State, and order that the first, third and fourth defendants be removed as parties to the proceeding.
114 Turning first to AEC's discovery application, it seems to be accepted that the summary of principles set out in Moreland City Council and Anor v Minister for Planning and ors,[73] accurately identifies the principles applicable to applications for discovery in proceedings seeking judicial review of the decisions of government and other public authorities, as follows (omitting footnotes):
(a) 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';
(b) where the proceeding before the Court requires the court to assume a fact finding role, discovery may well be ordered to assist the court in fulfilling that role;
(c) in cases where the reasonableness, or 'rationality' of the decision is in question, discovery may be ordered in respect of the documents before the relevant decision-maker;
(d) 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
(e) while there appears to be a more relaxed approach to the question of 'fishing' in later decisions compared with earlier decisions it is still the case that the making of a mere assertion in an originating process, without more, is insufficient to persuade a Court to exercise its discretion to order discovery in judicial review matters.[74]
115 In the current case, while the State has provided no reasons for the decision to end the tender process, and the reasonableness or rationality of the relevant decision is put in issue by the Originating Motion, my finding that AEC's claims in this proceeding have no real prospects of success means that AEC does not have 'a good case proof of which would be aided by discovery'. Further, it is tolerably clear that discovery is being sought to identify whether AEC has a case, rather than to obtain evidence to bolster its case. Further, while I understand the rationale for seeking critical documents considered by the Committee prior to making the decision to terminate the tender process, I repeat my earlier observations regarding the public interest immunity which attaches documents which inform or are the subject of the deliberations of Cabinet. As for the report of Mr McCann and associated documents, the potential forensic utility of an external consultant's report which predated the decision to end the tender process by more than a year is not entirely clear to me.
116 Similar considerations apply to AEC's application to administer interrogatories, perhaps even more so given that it is rare indeed for leave to be given to administer interrogatories in cases commenced by originating motion; and indeed in cases other than actions for damages for personal injury. Further, there are other sound reasons why leave ought not be granted: first, notwithstanding the fact that the State gave ample notice of its intention to seek summary judgment (no later than 11 December 2019), no draft interrogatories were provided for consideration by the State and the Court prior to the hearing of the parties' applications. Secondly, there is a practical consideration: to whom would the interrogatories be addressed, given that the relevant decision maker is a committee of Cabinet?
117 Finally, I agree with the State's submissions that the only proper party to the proceeding is the State, given that the decision‑maker was a committee of Cabinet, and the State is the owner of the land in the Precinct. The inclusion of the VPA and the two Ministers as defendants seems to be based upon mere speculation as to their possible role in advising the Committee.
118 Accordingly, I shall grant summary judgment, and dismiss the applications in the plaintiff's summons filed on 19 February 2020. I will seek submissions from the parties with respect to the question of costs, in the event that any party seeks a departure from the usual orders that the plaintiff pay the defendants' costs of the parties' applications on a standard basis.
State of Victoria (Department of Jobs, Precincts and Regions)
Minister for Priority Precincts (State of Victoria)
[1] According to the terms sheet submitted by AEC to the State on 3 November 2017.
[3] AEC indicated during the course of the hearing that it does not press this ground of review.
[4] Administrative Law Act 1978 (Vic).
[8] Giles v Jeffrey & Ors [2019] VSC 562 [44]-[47].
[9] The evidence does not reveal Mr Armstrong's position within the State Government.
[16] AEC conceded that paragraph 28 of the Originating Motion should be struck out.
[17] See, for example, Commonwealth of Australia v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604.
[19] The matter settled before the hearing of the appeal by the High Court. The transcript of the hearing before Keane and Nettle JJ was in evidence.
[21] [2009] NSWCA 277; (2009) 76 NSWLR 99, referring to, among others, the decision of R v Toohey; Ex Parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, and Peko-Wallsend.
[30] See R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170; Macrae v Attorney-General (NSW) (1987) 9 NSWLR 268.
[33] See, for example, Stephen J at 352, Mason J at 369, and Wilson J at 398, where his Honour stated: 'The problem [of whether there is a duty to afford procedural fairness, and how] does not arise where decisions are of a legislative character or of a kind which affect the community as a whole or large sections of it.'
[38] Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89.
[41] [2015] HCATrans 295, at page 5.
[44] See Matthews v SPI Electricity Pty Ltd & Ors (No 11) [2014] VSC 65 [24], and the authorities referred to in that paragraph.
[52] See Council of Civil Service Unions v Minister for Civil Services [1985] AC 374 ('CCSU'), at 407 per Lord Scarman, where he said '... the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter'.
[54] Referring with approval to Peko-Wallsend and CCSU.
[60] (2013) Lawbook Co (5th edition). See also Re Minister for Immigration and Multicultural and Indigenous Affairs; ex Parte Laws [2003] HCA 6; (2003) 214 CLR 1, [27]-[28], [66]-[78].
[68] See the discussion by Wilcox J in Peko-Wallsend (at 299-302), including the reference to the particular features of Cabinet (such as collective responsibility for Cabinet decisions) in Whitlam v Australian Consolidated Press (1985) 73 FLR 414.
[69] See Kioa v West [1984] HCA 29; (1985) 156 CLR 296 and the numerous authorities which have followed and applied the reasoning of the High Court in that case regarding the circumstances in which a decision maker is required to accord procedural fairness.
[70] See, for example, FAI Insurances [1982] HCA 26; (1982) 151 CLR 342 at 361-3 per Mason J, at 377-8 per Aickin J; Croft v Macnamara [1999] VSC 495.
[71] The application was heard on 24 February 2020, approximately a month before the declaration of the current state of emergency.
[72] By way of example, AEC's proposal for the development of the Precinct included the establishment of a university with 40,000 students, approximately half of whom would be international students.
Australian Education City
Victorian Planning Authority [2020] VSC 177
(1987) 15 FCR 274
(2015) 123 SASR 147
(1982) 151 CLR 342
(2013) 42 VR 27
(1993) 176 CLR 604
(2015) 123 SASR 142
(2009) 76 NSWLR 99
(1981) 151 CLR 170
(1987) 9 NSWLR 268
(2007) 230 CLR 89
(2010) 187 FCR 449
(1959) 101 CLR 298
(2003) 214 CLR 1
(1902) 151 CLR 342
(1985) 73 FLR 414
(1985) 156 CLR 296