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[2018] VSC 88
General information, not legal advice.
Supreme Court of Victoria
2018-02-28
Ginnane J
Original judgment source is linked above.
JUDICIAL REVIEW - Practice and procedure - Discovery - Application for discovery in judicial review proceeding.
1 The plaintiff in this judicial review proceeding seeks discovery from the defendants. The proceeding concerns an authorisation granted by the first defendant, to which I shall refer to as the Environment Department, to cull some 400 Eastern Grey Kangaroos living on a landlocked site adjacent to the Melbourne Wholesale Market precinct in Epping. That precinct is managed by the Department of Economic Development, Jobs, Transport and Resources, the second defendant, to which I will refer to as the Economic Development Department and which sought and obtained the authorisation. The plaintiff seeks discovery of 23 further documents or categories of documents set out in a list provided to the Court at the hearing of this discovery application. The plaintiff's amended summons sought discovery of particular documents that were in the actual or constructive possession of the two departments at the time that the [first] defendant was in the process of making the decision to grant the authority to control wildlife dated 25 July 2017. The discovery that was sought was later refined in the list of documents to which I have referred.
2 The aims of the plaintiff, the Australian Society for Kangaroos Inc. ('the Society'), are to endeavour to represent all species of kangaroos and wallabies and protect them from unnecessary suffering, killing, orphaning and extinction and to represent the general public who value those matters, as well as performing an educative and awareness increasing role. The Society emphasised the importance of kangaroos and their status as a significant national symbol of Australia.
3 The Society seeks judicial review orders, including a declaration, that the decision to issue the authorisation was unlawful.
4 The kangaroos inhabit an area, that seems to be about 50 hectares, which is part of a landlocked site in Epping on which the new Melbourne Wholesale Market stands, as does a privately owned residential development site known as Cedar Woods. The market site is owned by the State of Victoria.
5 On 3 February 2017, the acting Secretary of the Economic Development Department, which manages the market site, applied to the delegate of the Secretary of the Environment Department for an 'Authority to Control Wildlife' in relation to land at Cooper Street Epping. The activities proposed to be undertaken were described as:
Complete cull of the Eastern Grey Kangaroo population at the site by a contractor by shooting and disposal of carcasses. Fences will need to be established, repaired or replaced to keep any future kangaroos straying in the area out of the site.
6 Shortly thereafter, Ms S Vij, a delegate of the Secretary of the Environment Department ('the decision-maker') received the application and forwarded it to an Independent Panel of Experts ('the IPE') for evaluation. The IPE was established in 2012 to advise the Secretary on applications for authorisation to control wildlife and its members have expertise in animal welfare, veterinary science and wildlife management.
7 On 8 June 2017, the IPE delivered its recommendations to Ms Vij, stating that:
Context
There is a population of 380-450 eastern grey kangaroos at the Melbourne Wholesale Market Precinct in Epping, managed by the Department of Economic Development, Jobs, Transport and Resources (DEDJTR). DEDJTR have applied for an ATCW [Authority to Control Wildlife] to cull all the kangaroos at the site.
The kangaroos cannot move elsewhere because the site is surrounded by urban development and main roads. The population has more than doubled since monitoring began in 2010 when 180 kangaroos were recorded. Since 2009, DEDJTR has managed the population in accordance with a kangaroo management plan, including regular monitoring of population numbers, animal welfare, available food, movements, road-kills and parasite levels.
The monitoring has determined that there is insufficient food available for the kangaroos which is impacting animal welfare. The kangaroos are susceptible to disease and starvation.
DEDJTR, the Department of Environment, Land, Water and Planning (DELWP), Ecology Australia and RSPCA Victoria agree that shooting the kangaroos is the most humane option.
DEDJTR has developed an operational plan, Project Plan for a Kangaroo Cull (Attachment 3) to support the ATCW application. The plan outlines activities to ensure the kangaroo control is undertaken humanely. The IPE were asked to review the KMP [Kangaroo Management Plan] and ATCW and to provide recommendations to Port Phillip region, which is responsible for deciding on the ATCW application.
8 The Recommendations supported shooting as the most humane method to remove the kangaroos, stating that it made the recommendations on the basis of concerns about animal welfare and that:
the kangaroos were stressed because of urban development, the proximity of humans and vehicles, and were also at risk from disease and starvation due to high stocking density and inability to migrate. The IPE stated that within five years, no suitable habitat would be available for the kangaroos. It noted that appropriate land use planning and kangaroo management in the area may have prevented this problem.
all kangaroos at the Melbourne market site be removed by destruction for animal welfare reasons. The control is necessary to prevent the kangaroos suffering further from disease, starvation, stress and vehicle collisions.
The IPE states that shooting is the most humane method to destroy the kangaroos. The shooting must be undertaken by licensed professional firearm operators and done in accordance with the conditions and requirements outlined in the National Code of Practice for the Humane Shooting of Kangaroos and Wallabies for Non-Commercial Purposes (2008).
10 On 20 July 2017, Ms Vij requested that the Economic Development Department provide an updated application form and it did so. The updated form was in substance the same application as the original and therefore it was unnecessary to seek a further opinion from the IPE.
11 On 25 July 2017, Ms M Kelly, then Regional Manager for the Port Phillip Region of the Environment Department and Ms Vij's immediate superior, 'recognised' the 2015 Kangaroo Management Plan ('2015 KMP') prepared by Ecology Australia Pty Ltd as a 'recognised wildlife management plan' for the purposes of the Wildlife Act 1975. This step was taken under s 28A(1)(h) which enables the Secretary to support a recognized wildlife management plan. Ms Kelly notified Ms Vij of that decision by letter which stated:
The Department of Environment, Land, Water and Planning agrees with the recommendations of the kangaroo management plan and of the Independent Panel of Experts (meetings March 2012, May 2012 and June 2017) that shooting the kangaroos is the most humane option. The Department of Environment, Land, Water and Planning also approves the Operational Plan for Kangaroo Management: Melbourne Wholesale Fruit, Vegetable and Flower Market Precinct (July 2017), which outlines the details for implementation of control works.
12 Later that day, after receiving Ms Kelly's letter, Ms Vij granted an authorisation to cull the kangaroos under s 28A of the Wildlife Act 1975. The terms of the authorisation, omitting various safety conditions, were:
The person named above is authorised under s 28A of the Wildlife Act 1975, to destroy, possess and dispose of the following protected wildlife and to use a gun to gain possession of that wildlife, subject to the conditions set out over the page:
13 Section 28A of the Wildlife Act 1975:
28A Authorisation to take etc. wildlife
(1) Subject to subsection (1AA), the Secretary may give written authorisation to a person to do all or any of the following -
(a) hunt, take or destroy wildlife;
(b) buy, sell, acquire, receive, dispose of, keep, possess, control, breed, process, display, take samples from or experiment on wildlife;
(ba) mark wildlife, handle wildlife for the purpose of marking it and interfere with the markings on wildlife -
if he or she is satisfied that the authorisation is necessary -
(c) because wildlife is damaging any building, vineyard, orchard, crop, tree, pasture, habitat or other property owned, occupied or administered by the person to whom the authorisation is to be issued or property adjacent to or in proximity to such property; or
(d) for the purposes of the management, conservation, protection or control of wildlife or for the purposes of education about wildlife, research into wildlife or scientific or other study of wildlife; or
(e) for aboriginal cultural purposes; or
(f) for the purposes of enabling the care, treatment or rehabilitation of sick, injured or orphaned wildlife; or
(g) for the purposes of ensuring the health or safety of any person or class of persons; or
(h) to support a recognised wildlife management plan; or
(i) to make provision for the custody, care and management of wildlife, held under another authorisation or a licence which has been suspended, during the period of that suspension.
14 The Society relies on five grounds as stated in its Amended Originating Motion in seeking to impugn the authorisation, namely:
"If the site were to be put up for sale within 12 months, the presence of a large. unmanaged population of kangaroos would be a significant encumbrance on the title. Any development would immediately be subject to the constraints of DELWP's Strategic Approach to kangaroo populations in growth areas ... "
"Recommendation: In order to prepare the eastern half of the Market for sale within 12 months. all kangaroos in this area should be removed by shooting at night."
15 Ms Vij did not give written reasons for her decision to grant the authorisation. At the first directions hearing on 11 October 2017, the defendants were ordered to:
produce documents relating to the decision under review, being those documents considered to be critical documents by the relevant decision-maker or evidencing the decision... to the Plaintiff...
16 Thereafter, Ms Vij made an affidavit setting out the process leading to her decision including the following:
19.1 The application of 20 July 2017;
19.2 The Kangaroo Management Plan;
19.3 The IPE recommendations of 8 June 2017 signed by Mr Ian Temby, and the 2012 IPE recommendations provided at Appendix A to the 8 June 2017 recommendations (but excluding 'Attachment 3' to the IPE recommendations);
19.4 Monthly Monitoring Reports prepared by Ecology Australia, pursuant to the Management Plan, for the period between August 2015 and June 2017 (excluding the February 2017 report, which I did not have).
19.5 The Guide to applying for an Authority to Control Wildlife.
19.6 The Departmental policy known as the translocation of wildlife policy, being the content produced on DELWP's internet site.
20.1 The Operational Plan for Kangaroo Management (Operational Plan), prepared by DEDJTR.
20.2 The National code of practice for the humane shooting of kangaroos and wallabies for non-commercial purposes.
17 Ms Vij exhibited the following 13 documents to her affidavit:
IPE recommendations dated 8 June 2017, including Appendix A
Letter from DELWP to the applicant dated 25 July 2017
Relevant Monthly Monitoring Reports prepared by Ecology Australia
Guide to applying for an Authority to Control Wildlife dated May 2016
Print out from DELWP's internet site containing the Translocation of wildlife policy
Operational Plan for Kangaroo Management dated July 2017
National code of practice for the humane shooting of kangaroos and wallabies for non-commercial purposes dated 2008
The Society was thereby provided with a number of critical documents, although some were redacted.
18 For the purpose of understanding the Environment Department's approach to the authorisation, it is appropriate to note that on 22 September 2017, about two months after the authorisation, Mr M Tooher the Acting Director, Legal Services of the Environment Department wrote to the Society's solicitor stating:
In this instance, the Department has issued an ATCW as authorised under section 28A(1) of the Act. The ATCW was issued in conjunction with the Department's recognition and endorsement of a kangaroo management plan for the site. The kangaroo management plan was prepared by Ecology Australia and is also approved and supported by the Independent Panel of Experts, which includes various scientists, veterinarians, and animal welfare expert, and the Department has engaged to provide expert advice on complex wildlife management issues. This scientific approach and the extent of peer review demonstrates that the Department has taken considerable steps to inform itself prior to issuing the ATCW, and demonstrates the seriousness with which the ATCWs are handled by the Department.
...
The situation had reached a critical point, having been under Review and management since 2010 (including monthly monitoring of the population). The land manager (being the Department of Economic Development, Jobs, Transport and Resources (DEDJTR)) has already sought advice from the Independent Panel of Experts and developed a Kangaroo Management Plan. DEDJTR then approached the Department with an application for at ATCW in early 2017. At the Department's request, the applicant developed an Operational Plan that incorporated feedback from the Department's wildlife officers and the Independent Panel of Expert.
Ultimately, the mob of Eastern Grey Kangaroos at this site are land-locked by infrastructure adjacent to the Melbourne Market in Epping and are suffering from a number of health conditions. Relocating kangaroos is not feasible due to their susceptibility to capture myopathy, high site fidelity, deteriorating health, the stress associated with handling and the risk of spreading disease to other populations. There are also issues with identifying nearby sites with sufficient natural resources to support a new kangaroo population without undue risk to the welfare of existing populations.
Monthly monitoring has showed that there was insufficient feed for kangaroos on the site and they were suffering from stress and disease, as well as regular roadkill incidents on nearby roads posing community safety and animal welfare concerns. In the circumstances, shooting of the kangaroo population was the most humane approach to the management of the kangaroo population at this location.
The ATCW includes detailed conditions to ensure the cull would be carried out in a humane manner, and that data could be collected so that our understanding of the ecology of this kangaroo population is improved.
...
Section 28A(1) of the Wildlife Act 1975 confers a discretion upon the Secretary to the Department to issue an ATCW in certain circumstances. As explained above, the Department considers that various circumstances warranted the issuing of the ATCW and that the issuing is clearly within any or all of the powers conferred by section 28A(1) and in particular those under section 28A(1)(d), (f), (g) and (h).
19 Before turning to consider the documents that the Society has requested, I will set out the legal principles that govern discovery in judicial review proceedings.[1]
20 The ordinary rules of discovery in civil cases limits the scope of discovery to the following categories of documents:
(b) documents that adversely affect the party's own case;
(c) documents that adversely affect another party's case; and
(d) documents that support another party's case.[2]
21 Discovery is often not ordered in judicial review proceedings because the documents evidencing the decision under review are usually before the court including a statement of reasons. But discovery can be ordered if the plaintiff has a good, or at least arguable, case proof of which would be aided by discovery. However, that is subject to any countervailing or discretionary factors, including the nature of the case and the time at which the application is made. It is sometimes said that the same discovery rules that apply in civil cases also apply in judicial review cases. But, in judicial review cases, while any discovery request will be assessed by reference to the issues raised, usually the primary focus will be on the documents that were before the decision-maker and which will have been provided to the plaintiff and be before the court.
22 In Minister for Immigration and Multicultural and Indigenous Affairs v Wong[3] the Full Federal Court said of the availability of discovery in judicial review proceedings:
It can be said, generally, that the test of Brennan J in Bannerman has usually been adopted as the appropriate test in determining whether discovery should be granted in matters of judicial review. However, it is necessary to set out the whole of what was said by Brennan J in the passage cited by his Honour. At 181-182 Brennan J said:
Though the power to require discovery be acknowledged, how should it be exercised? It depends upon the nature of the case and the stage of the proceedings at which the discovery is sought. In the present case, discovery is sought before there is a tittle of evidence to suggest that the Chairman did not have the requisite cause to believe which para 6 of the statement of claim would put in issue. Some assistance was sought to be derived from cases where discovery had been given to a party before he was required to give particulars of his claim ... but in cases of that kind there is either an anterior relationship between the parties which entitles one to obtain information from the other, or sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery. This is not such a case. This is a case where a bare allegation is made by para 6 of the statement of claim and, the paragraph being denied, the applicant seeks to interrogate the Chairman and ransack his documents in the hope of making a case. That is mere fishing. As Smithers J said in Melbourne Home of Ford Pty Ltd v Trade Practices Commission and Bannerman:
In the absence of such evidence the proceeding is essentially speculative in nature. In such circumstances for the court to assist the applicants by making available to them the processes of interrogatories and discovery would be to assist them in an essentially fishing exercise and from this the court on established principles should refrain.[4]
23 One way of stating the test that a plaintiff in a judicial review proceeding must satisfy to obtain discovery of documents that were not before the decision-maker is: 'whether there is evidence to ground a suspicion that the applicant has a good case, proof of which is likely to be aided by discovery'.[5] An allegation that a document will assist the Society to prove its case will not, by itself, be sufficient. Still less will a document that the Society alleges might assist it argue the merits of the authorisation decision. As the Society's amended summons makes clear, this discovery application, at least originally, was confined to documents that were actually or constructively before the decision-maker when she granted the authorisation.
24 The Court's powers of judicial review do not permit it to conduct a merits review as VCAT might, but to determine whether the decision has been lawfully made under the applicable statutory power or discretion. As Brennan J stated:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in doing so, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.[6]
25 Usually judicial review applications are decided on the documents or information that were before the decision-maker or to which he or she had access. As the Society contends, there are exceptions to that usual practice, including evidence led to show that a decision was unreasonable or illogical in the legal sense or failed to have regard to relevant evidence.
26 The Society contended that its grounds as amended raise significant factual disputes and that it is entitled to primary documents upon which the reports before the decision-maker were made. Its contention was that the kangaroos are a 'relatively healthy kangaroo population'. It described the IPE as having acted as 'a rubber stamp' and argued that the decision-maker had failed to act reasonably in exercising her authorisation discretion.
In essence, the documents that have been produced by the defendants to date... are the documents that were considered by the [first] defendant in making the decision to issue the authorisation. The Discovered Documents provide some information which will assist the court in resolving the factual issues that must be resolved before the originating motion can be resolved. They are however incomplete.
The Discovered Documents refer to a number of other documents which are in existence, that are relevant and in some instances crucial to the disputed factual issues that have not been produced or discovered by the defendants.
...
Without discovery of the categories of documents sought by the plaintiff, the plaintiff submits that it will be disadvantaged in respect of the above identified factual issues and therefore this is a 'special case' by which 'the facts are such as to justify an order being made' for discovery in the terms sought by the plaintiff. The plaintiff's disadvantage is real in that it has been able to identify actual documents that are in existence, in a large part created by or for the precursor to the Department of Environment, Land, Water and Planning, the Department of Environment and Primary Industries, and therefore can be assumed to be in the possession of said department.
Pursuant to section 28A of the Wildlife Act 1975 (Vic), the decision maker may only give written authorisation to destroy wildlife if he or she is satisfied that the authorisation is necessary for one of a seven stated reasons (this state of satisfaction is a jurisdictional fact). Ms Vij has not yet deposed how and why she reached the state of satisfaction that the authorisation was necessary and has not yet provided evidence as to which of those seven purposes she relied on in reaching her decision to grant the authorisation. Based on the material discovered to date, it can be inferred that Ms Vij reached the necessary state of satisfaction as to the following grounds:
...
A jurisdictional fact 'erroneously determined' can give rise to a jurisdictional error. This can occur if a decision maker has 'asked the wrong question' (ground three of the plaintiffs amended originating motion), or if the decision maker has exercised its discretion not according to the rules of reason and justice, or acted arbitrarily, capriciously or unreasonably (grounds one and two of the plaintiff's amended originating motion). It is the plaintiff's case that the decision maker could not have been satisfied that it was necessary to issue an authorisation to cull, because the decision maker could not have been satisfied of the following facts:
a. that the kangaroos were sick, injured or orphaned;
b. that there was a health or safety risk to any person.
29 On the other hand, the defendants submitted that the Society's request for documents was an overreach of its entitlement to discovery and that it would gain nothing by examining documents that were not before the decision-maker and which played no part in her decision. The decision-maker was not conducting a general inquiry, was not an expert and had relied on the expert reports provided to her as she was entitled to. There was no evidence that the documents on which the decision-maker relied had been inaccurately prepared. The Society did not need further evidence to present its case. The defendants are yet to file their evidence for the final hearing.
30 The parties made conflicting submissions about whether the defendants had provided documents to the Society in a timely manner and had co-operated in an appropriate manner in the conduct of the proceeding. Without disregarding the importance of those obligations, they are not determinative of the Society's request for discovery and I do not need to consider them in this judgment.
31 The parties addressed the documents requested by the Society in groups and I have followed that approach.
Document categories referred to in the 2015 Kangaroo Management Plan ('2015 KMP') (A - G, I)
32 Documents A to G and I in the Society's list of documents are connected to the 2015 KMP and are:
(1) August 2015 - page 1, page 9; and
(2) September 2015 - page 1, page 6
33 The 2015 KMP was prepared by Ecology Australia, which has prepared a number of reports for the Environment Department and discussed options for the management of kangaroos on the site. As previously mentioned, the 2015 KMP was designated as a recognised wildlife management plan under s 28A(1)(h) of the Wildlife Act 1975 and was a document to which Ms Vij had regard in granting the authorisation.
34 It is difficult at this stage of the proceeding before the defendants have filed their evidence to determine whether the Society has a 'good case' or an 'arguable case' based on the grounds upon which it relies. Nevertheless in my opinion, documents not before the decision-maker cannot assist the Society to establish any of the grounds on which it relies, whether or not those grounds allege that jurisdictional facts were absent. Ground 1 alleges that the first defendant failed to consider relevant information being the routine monitoring reports. Ground 2 alleges that the first defendant fell into jurisdictional error by making a finding that the shooting of the kangaroos was the most humane option, the finding of which is alleged to be unreasonable, illogical and/or irrational, and/or for which there was no evidence. In respect of Ground 2, the Society relies on the particulars to ground 1. Ground 3 alleges that the first defendant applied the wrong test by inquiring what was the most humane option of managing the kangaroos rather than applying the statutory criteria contained in s 28A. Ground 4 alleges that the first defendant failed to discharge the duty imposed by s 28A when he failed to consider and/or inquire into non-lethal options of kangaroo management, specifically translocation. Ground 5 alleges that the decision-maker relied on an irrelevant consideration, 'specifically the impetus to develop and/or sell the land on which the kangaroos are situate'.
35 All of these grounds, whatever their merits, are based on the decision-maker's actions. She has sworn that she had regard to particular documents and legislation. Reference to other documents such as those considered by the authors of the KMP 2015 or of the IPE recommendations cannot help prove the Society's case. This is not a case where the plaintiff contends that the decision was unreasonable, illogical, irrational or was not supported by evidence because the decision-maker did not considered evidence or material to which she had access. Rather, the Society's case is based on arguments about the decision-maker's reliance on the documents that she took into account.
36 The documents A to G and I are referred to in the 2015 KMP and appear to have been relied on by its authors. As the 2015 KMP states (emphasis added in bold type):
1.1 This Plan
This KMP has been developed in accordance with the requirements of the Strategic Approach for Kangaroo Management in the Growth Areas of Melbourne, developed by DELWP [then, Department of Environment and Primary Industries (DEPI 2013a)], and the associated Draft Operational Plan (DEPI 2013b). The plan is therefore based on two primary considerations: public safety and animal welfare.
Since the first KMP was prepared in 2009, development of the Market Precinct has been largely completed, and there have been significant changes to the total area and condition of habitat for kangaroos on site, as well as on surrounding land. This KMP summarises the history of kangaroo management actions taken so far, and reviews long-term monitoring data on kangaroo abundance, population density, habitat area, food resources, and animal health and welfare.
This KMP reviews a set of options for management of land-locked kangaroo populations, which have been subject to detailed evaluation by DELWP (DEPI 2013a, b). The KMP then makes recommendations for action based on these options. Because further development of the Melbourne Market site will be ongoing, but the sequence and timing of future development is unresolved, this KMP takes a flexible approach. It identifies alternative management scenarios and makes explicit recommendations for active management of kangaroos for each scenario.
37 Documents A and B are previous statements of the Environment Department's policy concerning kangaroo management. The 2015 KMP states that in line with those previous policy statements, it is based on two considerations: public safety and animal welfare.
38 The 2015 KMP itself is not under review and the decision-maker was entitled to act on its contents and conclusions without herself checking that the references upon which it relied supported its statements and conclusions. None of the grounds of the Society's judicial review application allege that the decision-maker erred in law by relying on the expert opinions. The Society's case would not be assisted by investigating whether the 2015 KMP properly applied the reasoning or conclusions contained in documents A and B.
39 There must be a limit to seeking documents that have been relied on in preparing the primary document on which the decision-maker relied. As previously, no case has been argued that the 2015 KMP inaccurately stated the effects of the sources to which it referred.
40 Summaries of the 2009 KMP (document E); the 2010 revised KMP (document F); and the 2011 Review of the KMP (document G), are annexed to the 2015 KMP on which the decision-maker relied. There is no evidence that those summaries are inaccurate and those documents are not under review. The decision-maker was entitled to act on the statements contained in the 2015 KMP that 'summaris[e] the history of kangaroo management actions taken so far'.
41 The remaining documents in this category: C, D and I, were also documents referred to in the 2015 KMP, but were not themselves before the decision-maker. The first two concern supplementary feeding of kangaroos at the site. Document I was a peer review of a draft KMP in 2009. No basis has been established for the discovery of these three documents. The Society's grounds focus on the decision-maker's authorisation which was based on the documents that were before her and the relevant legislation.
Documents forming the basis and otherwise related to the Independent Panel of Experts' Report (H, J, Q, W)
43 As previously mentioned, Ms Vij, on behalf of the Secretary of the Environment Department forwarded the Economic Development Department's application for an authorisation to cull the kangaroos to the IPE and on 8 June 2017 received its recommendations together with recommendations made in 2012.
44 The Society sought production of both documents that underpinned the IPE recommendations and surrounding communications between the defendants and the IPE. It described these as the primary documents.
45 The defendants submitted that document W, which describes a brief sent by the Economic Development Department to the IPE did not exist, rather, the Environment Department was the government agency which sent the brief to the IPE and received its recommendations. They submitted that document J, which was described as correspondence between the IPE and the RSPCA, may not exist. In any event the decision-maker received and relied on the final report of the IPE recommendations, which spoke for itself.
46 The IPE recommendations are contained in a two page document signed by the Panel's Chair and titled 'Recommendations of the Independent Panel of Experts (IPE)'. I have previously set out two of the recommendations and the document contains the following opening words:
This document was prepared by the IPE secretariat based on the discussions at the IPE meetings. It has been reviewed by all members and approved by the IPE chairperson, Ian Temby.
47 Document H is described as 'notes from meetings and site visits of the [IPE] from 2010 to 2017'. These documents would not assist the Society's judicial review grounds, because they were not before the decision-maker and there is no evidence that they formed a basis for her decision. The IPE recommendations are in the document signed by the Chair and approved by the members and provided to the decision-maker. There is nothing to suggest that the notes requested would undermine the IPE's recommendation.
48 Document Q appears to have been already provided to the Society.
49 There is no evidence of any correspondence with the RSPCA as described in category J. There is no evidence that such documents existed or whether the RSPCA expressed any views to the IPE orally. There is no evidence that any such correspondence was before the decision-maker.
50 There is no evidence that document W exists. The Environment Department forwarded the application from the Economic Development Department to the IPE requesting its opinion. In any event even if it did exist, it would not be appropriate to order its discovery as the IPE recommendations were in the final document and its recommendations are not under review.
52 Ecology Australia compiled monthly monitoring reports about the kangaroos on the site, measuring population size; biomass availability; animal welfare; kangaroo movements and road-kills; and parasite levels. Monitoring commenced in January 2010. Save for the February 2017 report, the decision-maker had each monthly monitoring report from August 2015 to June 2017, which she described in her affidavit as 'relevant monthly reports'.
53 The Society ultimately did not press for monthly reports prior to August 2015, save that it sought discovery of the February 2017 report - it has been provided with the other reports from August 2015. Senior Counsel for the defendants did not ultimately resist producing the February 2017 report, if it exists, however noted that it was not before the decision-maker and thus could not have influenced her decision.
54 The decision-maker considered the reports covering the period from August 2015 to June 2017 to be relevant to her task. With one exception, she had those reports. I consider reports earlier than August 2015 to be insufficiently relevant to order their production.
55 The February 2017 report was not before the decision-maker. The first ground of the Society's challenge is that the decision-maker did not have regard to relevant information included in the monthly monitoring reports, that may include monthly monitoring reports that the decision-maker should have had regard to, but in fact did not do so. On that basis I will order production of the February 2017 report.
57 The Society's request for discovery of documents P and U is for documents that post-date the decision to grant the authorisation. They include any daily situation reports, which were reports for days when kangaroos were killed, and any autopsies of any kangaroos that were killed pursuant to the authorisation. Some kangaroos had been killed or culled under the authorisation before this proceeding was commenced.
58 The Society contends that these documents will prove that the second defendant's stated motivation for culling the kangaroos was incorrect as they may establish that the kangaroos were healthy. The defendants on the other hand submitted that documents post-dating the decision under review cannot bear on the legality of the decision.
59 I accept the defendants' submissions. Evidence that post-dates the decision-maker's authorisation cannot shed light on the grounds relied on by the decision-maker or the legality of her decision. I have previously described the grounds relied on by the Society and their connection to the information that was before the decision-maker. The Society's amended summons sought production of documents that were in the actual or constructive possession of the departments when the authorisation was made.
61 These categories of documents concern economic and financial issues that may have affected the authorisation decision. Document N appears to relate to the Society's ground that the decision-maker failed to consider non-lethal options. The defendants say that document N is irrelevant because the Society has produced no evidence that the authorisation decision was motivated by cost.
62 The references to the expense of translocating the kangaroos in the 2015 KMP are made at a high level of generality and appear to be based on informed assumptions about the cost of those options. The decision-maker did not have quotations of the cost of translocating the kangaroos. There is no indication that the authorisation was motivated by financial considerations, either to save money or to generate revenue.
63 I therefore consider that the production of these documents, assuming that they exist, would not assist the Society to establish its case.
65 The Society seeks production of the 'development approval' referred to in the Authority's application. The words 'development approval' appear in the 'Authority to Control Wildlife Application Form' submitted to the first defendant by the second defendant as follows:
The Eastern Grey Kangaroos at this site have been monitored as a condition of the development approval since 2010. Monthly reports have been prepared by Ecology Australia Pty Ltd.
66 The Society submitted that the document was relevant to the fifth ground of its judicial review application which is that the decision-maker wrongly relied on the impetus to develop or sell the land on which the kangaroos are situated rather than having regard to the welfare of the kangaroos. The defendants submitted that the document only demonstrated that the development approval may have led to the monthly monitoring, but had no relevance to ground five or any other ground.
67 The relevant monthly reports are those described by the decision-maker and which were before her. Whether they were obtained because of the development approval is not relevant to the issues raised by the Society's case. The development approval application was made seven years ago. The reference to the possible sale of the site within twelve months was only one of two possible land development scenarios considered in the 2015 KMP.
68 Neither Department was the developer of the site and it is speculative to contend that concerns about development would have motivated the decision-maker's grant of the authorisation.
Advice concerning declining Kangaroo population ('R')
70 The Society sought discovery of document R. The defendants contended that this document was insufficiently relevant to be discoverable even if it existed and it was obscurely described and probably referred to a period around 2010. The monitoring reports had been provided following this advice, but the kangaroo population had not declined, rather it had increased with the result that the authorisation was sought.
71 The record shows that previously, for instance at the time of the revised 2011 KMP, there was a view that the kangaroo population would decrease, but that did not occur. In the application for an authorisation, the Economic Development Department stated:
Scientific advice received prior to development of the site indicated the pre-existing population would naturally decline over time. This would be due to the noise and activity associated with the commercial and residential development and activity causing the kangaroos to move to an alternative location, and the reduced food supply. This has not occurred, and the population has increased to an unsustainable level.
72 The hypothesis of 2010 and 2011 that the population would decrease cannot assist in the evaluation of the Society's grounds for challenging the legality of the decision-maker's authorisation made in 2017.
74 The day after the hearing when I had reserved judgment, the defendants informed the Court that they would provide the Society with any documents evidencing communications referred to in category V between 3 February and 25 July 2017; and any correspondence, notes of correspondence or file notes referred to in categories S and T.[7]
the attachments to the document titled 'Recommendations of the Independent Panel of Experts', some 43 pages of which have been redacted in their entirety.
was served on the Society and is no longer an issue in this application.[8]
76 The Society sought unredacted copies of documents discovered by the departments. The redactions mainly were of details of departmental officers which it was said were not relevant to the proceeding. The parties exchanged written submissions about this issue, but it is not necessary to consider the matter that they raise or the defendants' contentions that the Society had agreed to the redactions. Because after the hearing, the defendants agreed to produce to the Society unredacted copies of the documents previously produced by them pursuant to the orders of the Court dated 11 October 2017 and any additional documents exhibited to the affidavit of the decision-maker of 29 January 2018, being those documents sought by the Society in paragraphs 5 and 6 of the Society's submissions of 8 February 2018, prepared pursuant to order 1 of the orders of 11 October 2017.
77 In addition to the additional documents that the Departments have agreed to produce, I require that the February 2017 monitoring report be discovered if it exists.
78 I will hear the parties as to the orders that should be made.
[1] The defendants referred to the judgment of Gillard J in Creswick Resources NL v Mining Warden of the State of Victoria [2000] VSC 134. See also Moreland City Council v Minister for Planning (2014) LGREA 152, [2014] VSC 468, [12]-[14] (Daly AsJ); and Moodie v Racing Integrity Commissioner [2017] VSC 175. The plaintiff also referred to cases including National Mutual Life Nominees Ltd v Co-operative Farmers and Graziers Direct Meat Supply Ltd [1976] VicRp 65; [1976] VR 634, 638; Australian Securities Commission v Somerville (1994) 51 FCR 38, 53-4; and Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446, 457 and 459.
[2] Supreme Court (General Civil Procedure) Rules 2015 r 29.01.1(3).
[3] Minister for Immigration & Multicultural & Indigenous Affairs v Wong [2002] FCAFC 327 [30].
[4] W.A. Pines Pty Ltd v Bannerman [1980] FCA 79; 41 FLR 175, 181-182 (Brennan J) quoting Melbourne Home of Ford Pty Ltd v Trade Practices Commission and Bannerman [1979] FCA 15; (1979) 36 FLR 450, 460 (Smithers J).
[5] Nestle Australia Ltd v Commissioner of Taxation (1986) 10 FCR 78, 83 (Wilcox J).
[6] Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-6.
[7] Email from Victorian Government Solicitors' Office to the Society (7 February 2018).
[8] Transcript of Proceedings, Australian Society for Kangaroos Inc. v Department of Environment, Land, Water and Planning & Anor (Supreme Court of Victoria, S CI 2017 03810, Ginnane J, 6 February 2017) 27.7.
Australian Society for Kangaroos Inc.
Secretary, Department of Environment, Land, Water and Planning [2018] VSC 88
(1994) 51 FCR 38
(2005) 148 FCR 446
(1979) 36 FLR 450
(1986) 10 FCR 78
(1990) 170 CLR 1