Plaintiffs v Defendants

2 In their originating motion filed on 21 July 2014, under the heading 'Grounds for Relief' ('Grounds'), the Councils set out the parties to the proceeding, the factual background to the proceeding, the statutory framework within which the recommendations were made by the Panel to the Minister on 30 May 2014, and the decision made by the Minister to grant the necessary approvals for the East West Project under s 77 of the MTPFA ('approval decision').

3 Paragraphs 16 to 18 of the Grounds attack the recommendations of the Panel. The Panel has indicated that it does not intend to take an active part in this proceeding, and has not appeared to defend this application. Paragraphs 19 to 23 (and the proposed paragraph 24) of the Grounds attack the Minister's decision to approve the East West Project on the following bases:

(a) the Minister had no power to make an approval decision unless and until the Panel had made a valid recommendation under s 73 of the MTPFA (paragraph 19);

(b) the Minister failed to have regard to certain mandatory relevant considerations before he could make an approval decision under s 77 of the MTPFA, including:

(i) s 12(2)(c) of the Planning and Environment Act 1987 (Vic), which provides that when preparing a planning scheme or an amendment to a planning scheme, the Minister 'must take into account its social effects and economic effects'; and

(ii) the decision making principles in the Transport Integration Act 2010, including the 'triple bottom-line assessment' principle contained in s 16 of that Act, being 'an assessment of all the economic, social and environmental costs and benefits taking into account externalities and value for money', (paragraph 20);

(c) the Minister made findings for which he had no probative evidence, or acted irrationally in finding that the East West Project 'will deliver a range of economic benefits' (paragraph 21);

(d) the approval decision purports to vest in the Minister the power to approve various aspects of the design and construction of the East West Project that have not been the subject of any assessment process (paragraph 22);

(e) the Councils were denied procedural fairness in respect of the approval decision, in part because the Minister had available to him, and had regard to, credible, significant evidence, including the business case, that the Councils had no opportunity to be heard on (paragraph 23);

(f) the Minister unlawfully refused to consider credible, relevant and significant evidence relating to the economic effects and economic costs and benefits of the East West Project, including the business case (proposed paragraph 24).

4 On 7 August 2014, the Councils filed a summons which, among other things, sought the following orders:

The plaintiffs have leave to file an amended Originating Motion on or before 4 September 2014 in the same or a substantially similar form to that annexed to this summons.

On or before 4 September 2014, the first defendant (the 'Minister') make discovery by filing an affidavit of documents in Form 29B and in accordance with Practice Note 6 of 2006 that:

1. identifies:
   1. each and every document that the Minister considered in making his purported decision on 30 June 2014 (the 'Approval') under s 77 of the Major Transport Projects Facilitation Act 2009 ('MTPF Act');
   2. each and every document that was in the 'possession' of the Minister within the meaning of r 29 of the Supreme Court (General Civil Procedure) Rules 2005 at the time that he made the Approval that records any assessment, advice or recommendation relating to the economic costs and/or benefits of any component or the whole of:
      1. the '[p]roposed freeway standard link between the Eastern Freeway and the Tullamarine Freeway generally along the Alexandra Parade corridor, with a further southerly connection to the Port Melbourne Area, being the project declared by the Premier of Victoria on or about 20 December 2012 to be a 'declared project' under s 10 of the MTPF Act (the 'EWL');
      2. the 'reference project' as described in the Comprehensive Impact Statement prepared by Linking Melbourne Authority in relation to the EWL,

including, without limitation, any interim or final 'business case' provided to Infrastructure Australia, and any interim or final response received from Infrastructure Australia.

5 The Councils applied to amend the Grounds to include a proposed paragraph 24, which is summarised at paragraph 3(f) above. The explanation for why the paragraph was not included in the original originating motion was simple and candid: the Councils' legal team had not thought of the proposed ground for relief within the 21 day period between the making of an approval decision and the commencement of any proceeding challenging that decision, as required by s 261 of the MTPFA. In that time, it was necessary for the Councils and their legal team to consider the voluminous report of the Panel and the approval decision, including the Minister's published reasons ('Reasons'). Further, the legal team was required to advise the Councils upon the legal and factual merits of bringing this proceeding and to draw up the necessary documents, and the Councils themselves had to go through their internal decision making processes for the purposes of determining whether to issue and fund this proceeding, all of which took time.

6 The Minister and the State opposed the grant of leave to amend the originating motion to include the proposed paragraph 24, on the basis that it is speculative, and has been introduced for the impermissible purpose of bolstering a discovery application which is of itself a 'fishing expedition'.

7 In my view, the amendment ought be allowed. The application was made reasonably promptly after the proceeding commenced, a plausible explanation has been provided, and the inclusion of the proposed paragraph 24 in the Grounds will not cause the trial date to be jeopardised or any demonstrable prejudice to the defendants. Given that the proposed paragraph 24 in some respects expands upon and more fully articulates the complaints made in paragraph 21 of the Grounds, and no attempt to strike out that paragraph has been made or foreshadowed, its inclusion could not be said to be an abuse of process. Further, given that the Councils' discovery application would succeed or fail upon the issues articulated in the existing Grounds, I do not accept the submissions advanced on behalf of the Minister and the State to the effect that the making of the application to amend was for the primary purpose of bolstering the Councils' discovery application.

8 In the submissions advanced on their behalf, the Councils confirmed that they sought documents that record any assessment, advice or recommendation relating to the economic costs and/or benefits of the East West Project which were:

(a) considered by the Minister in the process of making the approval decision; and/or

(b) in the actual or constructive possession of the Minister at the time he made the approval decision.

9 In relation to the question of what documents were in the 'actual or constructive possession' of the Minister, senior counsel for the Councils submitted that, while the issue of what amounts to 'constructive possession' could be ventilated and determined at a later date, there was a sufficient evidentiary basis for making the submission that the document described as the 'full business case' for the East West Project ('business case') could be held to be in the 'constructive possession' of the Minister by reason of the business case having been before the Cabinet (of which the Minister is and has at all relevant times been a member), having been prepared by or at the instigation of officers of the then Department of Transport, or having been in the possession of Linking Melbourne Authority, the project authority appointed under s 6 of the MTPFA.

10 Prior to considering the parties' evidence and submissions in detail, I should note that while the Councils seek any documents which record any assessment, advice or recommendation relating to the economic impacts of the East West Project, it is apparent from the Grounds, and the evidence relied upon by the Councils, that the primary target of the discovery application appears to be the business case. This document has been referred to by Ministers of the State in public pronouncements regarding the East West Project, but has not been made public. The business case has been the subject of Freedom of Information applications and reviews before the Victorian Civil and Administrative Tribunal ('VCAT') whereby VCAT has upheld the decisions of the relevant authorities to withhold disclosure of the business case from interested parties. As the business case was not before the Court on this application, it is not possible to conclusively determine whether the business case contains the type of economic and financial information which the Councils contend should have been considered by the Minister when making the approval decision. However, from reviewing a document titled 'East West Link Stage One: Executive Summary: Short Form Business Case: Information for Infrastructure Australia',[1] and in particular, the contents of page 7 of that document, under the heading 'Cost benefit analysis', it seems to me to be tolerably clear that the contents of the business case would fall within that description, and would be quite likely to contain detailed information regarding the economic and financial aspects and impacts of the East West Project. The Minister, in the Reasons, stated that he 'did not rely upon a business case'. However, no evidence was advanced on behalf of the Minister and the State that the Minister did not have, or never had the business case in his possession, or that he has never reviewed or considered the business case for the purpose of making the approval decision, or any other purpose. Rather, they resist the application on the basis that the Councils have not established the necessary facts to ground a discovery application, and that in any event, my discretion to order discovery, which is substantially constrained by the judgment of the Court of Appeal in East Melbourne Group Inc v Minister for Planning and Anor,[2] ('East Melbourne case') should be exercised against the Councils on the basis that the discovery application is a mere fishing expedition.

11 During the course of the hearing of the Councils' application on 8 September 2014, it became apparent that the class of documents sought in paragraph 3(a)(i) of the summons was far wider than that actually sought by the Councils, and senior counsel for the Councils agreed that that class should be confined to documents which 'record any assessment, advice or recommendation relating to the economic costs and/or benefits of any component or the whole of the East West Project.' It also became apparent that the legal representatives of the parties had divergent understandings of what might be described as the 'temporal' dimensions of the discovery sought by the Councils, in that senior counsel for the Minister and the State understood that the summons sought documents considered by the Minister on 30 June 2014, rather than those considered by the Minister in the course of and for the purpose of making the approval decision, such decision being recorded in a document dated 30 June 2014. While I understood the Councils to be seeking discovery of documents considered in the course of and for the purpose of making the approval decision, not just those documents which were considered by the Minister during the course of 30 June 2014, I agreed that, in the event that I rejected the Minister's submissions that no discovery ought to be ordered, I would provide the Minister with an opportunity to make further submissions regarding the scope of discovery.

12 As noted above, this proceeding is an application for judicial review, commenced by way of originating motion. Under the rules of this Court, discovery is ordered in cases commenced by originating motion only in 'special circumstances'. The rationale behind this is that proceedings commenced by way of originating motion are generally those of a character where there is no substantial factual dispute. Applications for judicial review are generally, by their very nature, concerned with questions of law rather than factual disputes. But there is no barrier in principle to discovery being ordered in appropriate circumstances, and in fact discovery has been ordered in judicial review proceedings in Victoria.[3]

13 Most of the authorities which have considered the question of whether discovery ought to be ordered have arisen, as might be expected, in the federal jurisdiction. The main principles to be distilled from these authorities can be summarised as follows:

(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'[4];

(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[5];

(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[6];

(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[7]; 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.[8]

14 In my view, the threshold test is whether the applicant has a good, or at least an arguable case, proof of which would be aided by discovery, subject to any countervailing authority or discretionary factors. If the case is shown to be more than merely speculative, then the existence of a factual question which might need to be resolved by the Court in its determination of the issues in the proceeding is probably sufficient to amount to 'special circumstances' to enliven the Court's jurisdiction to order discovery, but is not, of itself, determinative of whether the Court should exercise its discretion to do so.

15 Accordingly, the issues for determination in this application are as follows:

(a) whether the Councils have demonstrated by their evidence and submissions, that they have a case which is more than merely speculative;

(b) whether the evidence relied upon by the Councils has demonstrated that the making of an order for discovery might elicit evidence of some material of probative value in the proceeding, and in particular, whether discovery would assist the Court in making any factual determination it needs to make for the purposes of determining the proceeding;

(c) whether, given the Minister's provision of the Reasons, the Councils' contentions in their originating motion that the Minister has acted 'irrationally' opens up for investigation and disclosure the documents which, among other things, the Minister considered, or had available to him but did not consider, during the course of making his decision;

(d) whether the decision of the Court of Appeal in the East Melbourne case, where it was held that where a decision maker provides reasons, the decision maker is bound by those reasons, provides a conclusive negative answer to the question raised in (c) above;

(e) if the East Melbourne case does not preclude ordering discovery in the current case, and the Councils have otherwise established that they have 'a good case, proof of which would be aided by discovery', then whether there are other considerations which would influence the Court's discretion to order discovery; and

(f) the scope of any discovery to be ordered, if any.

16 Taking the question of whether the Councils have shown that they have more than a merely speculative case before the Court, first, while I consider that it is premature and probably inappropriate to go into any detail regarding the merits of the proceeding and the possible outcome, I do accept that the matters raised in the relevant grounds for review go beyond mere speculation. Of course, the grounds for review, 'pleaded' in effect in the alternative, invite speculation as to what material the Minister had before him, or available to him in the process of making the approval decision, or as to what use he might have made of such material. However, that there is some speculation as to the process which led up to the making of the decision does not, in itself, mean that the proceeding seeking to impugn the approval decision is 'speculative', in that there is no basis for at least contending the Minister's approval was tainted by error. Indeed, the lack of certainty regarding the Minister's decision making process indicates that the Court might be required to undertake a fact finding role which would weigh in favour of ordering discovery.

17 My reasons for concluding that the grounds of review in the Councils' origination motion are not without merit are as follows:

(a) the legislative framework within which the Minister made the approval for the East West Project demonstrates that, it is at least reasonably arguable that, in making the approval decision, the Minister was required to consider the economic consequences of the East West Project, including 'value for money' considerations. There was no dispute that the Minister, in his capacity as Minister for Planning, was an 'applicable law decision maker' within the meaning of s 3 of the MTPFA, and that as a 'planning authority' under the Planning and Environment Act 1987, he was required to have regard to the economic and social benefits of the planning scheme amendments required to facilitate the East West Project. There was also no dispute that in his role as the final decision maker with respect to the East West Project under the MTPFA, he was required to incorporate the 'triple bottom-line assessment' referred to in s 16 of the Transport Integration Act 2010;

(b) there is in existence at least one document, the business case, which, judging from the contents of the 'short form business case' referred to in paragraph 10 above, the 'Treasury Guidelines' document[9], which provides a detailed template for analysing and reporting upon the economic and financial aspects of major infrastructure projects in Victoria (of which the East West Project is undoubtedly one) and the evidence of witnesses before VCAT regarding its purpose and contents,[10] is likely to have addressed in some detail both the economic consequences and 'value for money' considerations referred to above;

(c) an inference can be drawn that it is more probable than not that the Minister, having been at all relevant times a member of the Victorian Cabinet, was at least aware of the existence of the business case prior to making the approval decision; and

(d) the Reasons make reference to the Minister not having 'relied upon a business case', which might be a matter relevant to the question of whether he had taken into account all relevant considerations.

18 For completeness, taken at its highest, the evidence does not establish that the Minister would have the business case in his possession by reason of the document being prepared by or at the instigation of officers of the former Department of Transport, which has now been combined, with the staff for whom the Minister has ministerial responsibility, into a conglomerate department, being the Department of Transport, Planning and Local Infrastructure, of which the Minister is one of a number of responsible ministers. While it was agreed between the parties that the question of what amounted to 'constructive possession' ought to be left to another day, my preliminary view is that there are a number of difficulties with the submissions made by the Councils in that regard. The contention that the Minister did have possession or would have had access to the business case by reason of it being in the hands of the Linking Melbourne Authority seems even flimsier. After all, the MTPFA provides for a clear demarcation of roles between the Minister, project proponents (in this case the Minister for Transport) and the project authority (in this case Linking Melbourne Authority), and the machinery provisions of the MTPFA provide no grounds for concluding that a party exercising one set of functions under that Act would automatically have access to material held by parties exercising other functions.

19 As for what can be relevantly gleaned from the Reasons, senior counsel for the Minister submitted that the Councils were 'manufacturing ambiguity' in the language of the Reasons in order to ground their application for discovery. I do not accept that submission.

20 The relevant section of the Reasons provides as follows:

1. In making my decision under section 77 of the MTPF Act, in addition to the East West Link (Eastern Section) Comprehensive Impact Statement (CIS) and the supporting material relating to the CIS, I have had regard to:

(a) the Report and Recommendations of the Assessment Committee (Committee);

(b) the advice of the EPA under section 64 of the MTPF Act;

(c) the applicable law criteria under applicable laws (a list of which is attached to the CIS);

(d) the relevant legislation.

...

1. In considering the economic justification for the Project I have taken a similar approach to that taken by the Committee. I do not rely on a business case. Further, it is not necessary for me to do so. It is sufficient for my purposes that the East West Link is enshrined in Plan Melbourne, which is incorporated in each of the relevant planning schemes. It follows that it is established as a matter of policy that the delivery of the Project will implement relevant planning objectives. It is axiomatic that, in the context of the approval decision the Project will deliver a range of economic benefits.

21 Two relevant matters emerge from these passages of the Reasons. First, the reference to 'Plan Melbourne' as the basis for the Minister's conclusion that 'It is axiomatic that, in the context of the approval decision the Project will deliver a range of economic benefits', suggests that the Minister, in making his decision, 'had regard' to matters and documents other than those set out in paragraph 2 of the Reasons, Plan Melbourne not being referred to in paragraph 2 of the Reasons. Secondly, I agree with the submissions of senior counsel for the Councils that there is a material difference between 'reliance' upon a document (involving the placing of weight upon a document when making a decision) and 'consideration' of a document (involving reading or reviewing a document and assessing what weight to place on it, if any, before making a decision).

22 Of course, I appreciate that the language of reasons for decisions ought not be evaluated with the same degree of rigour and attention with which one might approach a piece of legislation or the reasons for judgment of an appellate court. As stated by the majority of the Court of Appeal in the East Melbourne case (omitting footnotes):[11]

We must adopt a 'beneficial construction' of the reasons and not be concerned with looseness in the language nor with unhappy phrasing. The reasons are meant to inform. But the caution against construing 'with an eye keenly attuned to perception of error', stated by the High Court in Liang, may be of more limited significance if the reasons have been formulated carefully and deliberately with the possibility of judicial review clearly in mind.

23 In the current case, given the public attention and controversy which has surrounded the East West Project for some time now, one can infer, and I do infer, that the drafters and author of the Reasons chose the words in the Reasons with some care, and in circumstances where a court challenge of some nature would almost certainly have been considered possible, if not likely. Indeed, a proceeding had already been issued in this Court by that time, albeit not a proceeding in the nature of judicial review.[12] Accordingly, to the extent that the Reasons disclose some inconsistencies in what the Minister said he 'had regard to' or 'relied upon' for the purpose of deciding whether to approve the Project, that provides not only some basis for concluding that the proceeding is not based upon 'mere assertion', but also for concluding that the Court may be required to embark upon a fact finding role in this proceeding, which may well be aided by the discovery process. After all, as well as contending that the approval decision was irrational, the Grounds include a contention that the Minister failed to have regard to certain mandatory relevant considerations when making the approval decision. While the primary avenue of inquiry in respect of this Ground are the Reasons, evidence regarding what documents the Minister had available may well be relevant to the determination of this question.

24 Of course, the provision of reasons for a decision is a factor which weighs against making an order for discovery. However, in Commissioner of Taxation v Nestle Australia Ltd[13], the Full Federal Court emphasised that while the provision of reasons may be relevant to the Court's discretion, the purpose and process of giving reasons and the Court's powers to order discovery and inspection are quite distinct, and the question of whether to order discovery remains within the sole discretion of the Court.

25 Senior counsel for the Minister submitted in opposition to the Councils' application that the reasoning of the Court of Appeal in the East Melbourne case represents a fundamental point of departure between the Federal Court authorities concerning discovery in judicial review proceedings, at least where the decision maker provides reasons, and the position in Victoria, and, if it does not completely preclude me from making an order for discovery in the current proceeding, should at the very least weigh heavily against making such an order.

26 Senior counsel for the Minister relied upon the East Melbourne case to advance the following contentions:

(a) the Minister, as he was obliged to do under s 80(1)(b) of the MTPFA, provided reasons for the approval decision;

(b) in the absence of any challenge by the Councils to the bona fides, sufficiency or adequacy of the Reasons, the Court should proceed on the basis that the reasons disclose the actual path of reasoning by which the Minister in fact arrived at his decision. An application for discovery should only be entertained where an applicant seeks to go behind the reasons to establish the true reasons or additional reasons for a decision;

(c) having given reasons, the Minister is bound by, confined to, and does not seek to go beyond the Reasons in defending the approval decision; and

(d) the East Melbourne case reaffirms the principle that where a statement of reasons is provided, the failure to refer to particular matters or to give other reasons will justify the inference that other matters or reasons were not relied upon.

27 In the East Melbourne case, the decision under review was a case where a Minister had given reasons for exempting a particular development proposal from the usual notification requirements under the relevant planning scheme, and then approving amendments to the planning scheme to facilitate the proposed development, in circumstances where all parties agreed the publicly stated reasons were illogical, and therefore unarguably tainted by error. However, at trial, there was evidence before the Court that there were other, undisclosed matters before the Minister which could have formed a rational basis for the decision the Minister made, and the trial judge refused to set aside the decision. On appeal, the majority of the Court of Appeal rejected the approach adopted by the trial judge, and held that a decision-maker should ordinarily be treated as bound by, and confined to, the reasons given for a decision. As such, there was a considerable inhibition to recourse by a court to other material where there was a challenge to an administrative law decision in which reasons had been provided. A court could admit evidence in quite limited circumstances 'so as to elucidate, but not fundamentally collide with, the reasons stated by the decision-maker'.[14] The trial judge was in error by adverting to other documents which evidenced other possible reasons for the decision, because he failed to assign to the Minister's stated reason the pre-eminence which it required. As stated by the majority:[15]

The decision maker having identified the reason for the decision, a review as to whether the decision was reasonable by reference to all material before the decision maker constituted an irrelevant merits inquiry.

28 The statement above certainly lends substantial weight to the submissions advanced by the Minister that it is impermissible to 'go behind' the Reasons in order to identify what material was before the Minister when he made the approval decision.

29 However, it is important to consider carefully the context in which the Court of Appeal decision in the East Melbourne case was made, and the policy reasons behind that decision which are evident from the reasons for judgment. The policy considerations behind the majority judgment are evident from the following passage:[16]

A decision-maker should ordinarily be treated as bound by - and confined to - the reasons which the decision-maker gives for the decision in question. That is partly so because as we have discussed, reasons have a particular importance and purpose. The right of persons affected to seek judicial review of a decision would be severely diminished if, a stated reason being indefensible, the decision-maker or those who seek to uphold the decision were then permitted to defend the decision on the basis of matters which were not mentioned in the statement of reasons but which were claimed to be in fact part of the reasons; or in reliance upon other matters which, although not adverted to, were capable of justifying the decision, such that it could not be said to be 'devoid of any plausible justification'.

30 It is clear from the above passage, and the subsequent reference to the decision and reasons of Hutchinson LJ in R v Westminster City Council; Ex parte Ermakov,[17] that a substantial purpose of emphasising the pre-eminence of reasons was to bind and confine the decision-maker, not necessarily to constrain a party seeking to attack the validity of the decision in question. In Ermakov, it was stated:

There are, I consider, good policy reasons why this should be so. The cases emphasise that the purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any ground for challenging an adverse decision. To permit wholesale amendment or reversal of the stated reasons is inimical to this purpose. Moreover, not only does it encourage a sloppy approach by the decision-maker, but it gives rise to potential practical difficulties. In the present case it was not, but in many cases it might be, suggested that the alleged true reasons were in fact second thoughts designed to remedy an otherwise fatal error exposed by the judicial review proceedings. That would lead to applications to crossexamine and possibly for further discovery, both of which are, while permissible in judicial review proceedings, generally regarded as inappropriate. Hearings would be made longer and more expensive.

31 Accordingly, it seems to me that the vice that the majority in the Court of Appeal in the East Melbourne case intended to address was the capacity of decision makers in judicial review proceedings to rely upon other reasons or documents which might rationalise the decision under review to in effect, 'patch up' otherwise deficient or incongruous reasons. It is not clear to me that the ratio in the East Melbourne case stretches so far as to deny a party seeking to challenge a decision amenable to judicial review the ability to investigate the decision-making process, provided that it was otherwise reasonable and proper to do so. Further, I doubt that the decision could be interpreted in such a way as to support a proposition that the Court of Appeal's reasoning renders irrelevant in this jurisdiction the substantial line of authority in the federal sphere concerning the availability of discovery in judicial review cases, as contended for on behalf of the Minister and the State.

32 In Love v State of Victoria and anor,[18] Cavanough J considered the potential implications of the Court of Appeal's decision in the East Melbourne case to a proceeding upon which he had heard and reserved judgment, where the applicant had submitted that the Court should draw certain inferences about the decisionmaker's reasoning from other facts and documents. Having invited the parties to make submissions regarding whether this was permissible, given the decision in the East Melbourne case and having received none, his Honour stated:[19]

However, where it is the opposite party that seeks to establish the true reasons, or additional reasons, of a decision-maker, then, subject to the requirements of relevance and reasonableness, I can see no basis for restricting the field of evidence or material to which that opposite party might resort, whether or not a statement of reasons has been provided.

33 Counsel for the Minister sought to confine the reasoning of Cavanough J as set out above to circumstances where an applicant was seeking to establish the true reasons, or additional reasons, of a decision-maker. I doubt those remarks can be so confined. In Love v State of Victoria, the plaintiff was not only concerned with ascertaining the "true" reasons of the relevant Minister, but also made allegations that the decisions sought to be impugned were tainted by improper purpose, a failure to take into account relevant considerations and by the taking into account of irrelevant considerations, and were 'unreasonable'. There was voluminous documentation before his Honour which was taken into account, not only for the purposes of drawing inferences as to the nature of the reasoning of the decision maker and others, but to consider 'issues about the characterisation of the facts for the purposes of administrative law'.[20]

34 In any event, as submitted by senior counsel for the Councils, the Councils do not seek to attack the Reasons on the basis that they are inadequate, or that there were other, undisclosed reasons for making the approval decision. What they seek to do is attack the decision making process antecedent to the publication of the Reasons, and in particular, identify what materials the Minister had access to, or could have had access to, in the period leading up to making the approval decision, so as to evaluate whether the Minister fulfilled his statutory obligations when making the approval decision. As noted by senior counsel for the Councils in his submissions, a decision maker can fall into jurisdictional error in ways which are not confined to those disclosed by the reasons advanced by the decision maker. In the current proceeding, there is an allegation that the Minister failed to take into account relevant considerations, being matters specified by statute. The fact that the Reasons specify that the Minister 'did not rely' upon a document or documents does not, without more, address the issue of what he took into account, or what he should have taken into account.

35 Finally, I note that the Court of Appeal in the East Melbourne case was concerned not with whether the documents sought to be relied upon by the decision-maker in that case, and considered by the trial judge in making his decision to uphold the relevant decision, were discoverable, but with whether they were admissible. Of course, if the documents sought by the Councils in this application could not possibly be admissible at trial, then that would be a significant consideration which would weigh against ordering discovery. But, a document may well be discoverable, in that it is relevant to the issues in the proceeding, without necessarily being admissible at trial, say, by reason of some privilege or immunity which attached to the document concerned, or in circumstances where the trial judge determines that admitting the document into evidence may risk setting in train an impermissible merits inquiry.

36 Accordingly, while I agree that in many judicial review cases the reasoning of the Court of Appeal in the East Melbourne case would be a significant barrier to ordering discovery, I do not consider it is an insurmountable one, provided that the other requirements for making an order for discovery are fulfilled. In the current application, most of the relevant considerations weigh in favour of making an order for discovery. First, reviewing the Reasons in the context of the legislative framework within which the Minister made the approval decision, along with the evidence regarding the business case, the likely contents of the business case, and the likelihood that the Minister was aware at least of the existence of the business case means that the contentions of the Councils advanced in the Grounds go beyond mere assertions, notwithstanding they evidence some degree of speculation as to what actually occurred.

37 Indeed, as noted previously, the speculation as to what the Minister had access to, and what he considered in the lead up to the making of the approval decision suggests that in the course of the hearing of the proceeding, the Court may be required to undertake a fact finding exercise, which one would expect would be assisted by the discovery process. Indeed, the discovery process of itself may have significant probative value even if any documents identified by the Minister are immune from disclosure by reason of public interest immunity, because the Grounds make certain allegations regarding what matters the Minister was required to have regard to when making the approval decision. If no documents are disclosed, that of itself may have some forensic significance at trial. As stated by Wilcox J in Nestle Australia Ltd v Commissioner of Taxation[21]:

In a case in which the complaint is that the decision-maker failed to take into account a particular matter the [reasons] will normally reveal that the particular matter was not considered. It will not normally show the existence of the facts said to be material or their availability to the decision-maker. These matters must be separately proved; and sometimes discovery will be necessary to procure access to documents necessary to be tendered for this purpose.

38 If documents are disclosed in the discovery process, it may well be unnecessary, given the manner in which the orders for discovery are framed, for the contents of the documents to be before the Court at trial. Indeed, it may well be that the trial judge would be reluctant to admit the actual documents into evidence, owing to the risk of the Court being drawn into an impermissible inquiry as to the merits of the approval decision, rather than an evaluation of what the Minister did take into account, did not take into account, and was required to take into account when making the approval decision. However, that is ultimately a matter for the trial judge.

39 In this regard, ordering discovery in the current proceeding in the terms sought by the Councils is not unlike, as observed by senior counsel for the Minister, the process of interrogation. That may well be an apt observation, but that of itself is not a significant matter weighing against the making of an order for discovery. In Minister for Immigration & Multicultural & Indigenous Affairs v Wong[22], the Full Court of the Federal Court saw no reason why interrogatories should not be able to be ordered in judicial review cases if appropriate to do so.[23]

40 Accordingly, I will order that the Minister make discovery substantially in the form sought by the Councils, although I will hear further from the parties regarding the precise scope of discovery. In that regard, I would agree with the submissions made by senior counsel for the Minister and the State that there needs to be some temporal limitation upon discovery. While I will hear further from the parties on the matter, it seems that given the Councils seek to impugn the decision made by the Minister under the MTPFA, the scope of the discovery needs to be limited to documents available to and/or considered by the Minister exercising his functions under the MTPFA, and not simply considered by him in the course of any deliberative process, such as any discussions of the Cabinet. I note that under the provisions of the MTPFA, the Minister's role in assessing the East West Project arguably only commences, at the earliest, upon the receipt by him of the Comprehensive Impact Statement referred to in part 3 of the MTPFA, which is the document which, among other things, specifies the information that would be required for the applicable law decisions to be made, and specifies the applicable law criteria against which the East West Project is to be assessed. There is no evidence regarding when the Minister received the Comprehensive Impact Statement, but I note that it was released to the public on 21 October 2013, the same day that the Minister provided the Panel with the Terms of Reference for the purpose of conducting its assessment of the East West Project.

41 I shall hear further from the parties on the scope of discovery to be ordered, the form of orders to be made, the process for dealing with any claims for public interest immunity, and the question of costs.

KATHRYN MITCHELL in her capacity as a member of the East West Link (Eastern Section) Project Assessment Committee

NICK WIMBUSH in his capacity as a member of the East West Link (Eastern Section) Project Assessment Committee

LYN DENISON in her capacity as a member of the East West Link (Eastern Section) Project Assessment Committee

DES GROGAN in his capacity as a member of the East West Link (Eastern Section) Project Assessment Committee

JIM HOLDSWORTH in his capacity as a member of the East West Link (Eastern Section) Project Assessment Committee

WILLIAM O'NEIL in his capacity as a member of the East West Link (Eastern Section) Project Assessment Committee

[1] Exhibit 'MH-7' to the affidavit of Monique Hutchinson affirmed on 21 July 2014.

[2] [2008] VSCA 217; (2008) 23 VR 605.

[3] See, for example, Creswick Resources N/L and Ors v Mining Warden of State of Victoria [2000] VSC 134.

[4] WA Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 41 FLR 175 at 181; Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp [1997] FCA 578 ("Canwest").

[5] Federal Commissioner of Taxation; Ex-parte Swiss Aluminium Australia Pty Ltd (1987) 72 ALR 247, at 249.

[6] Australian Securities Commission v Somerville (1994) 51 FCR 38, at 42.

[7] Lloyd v Costigan (1983) 82 FLR 104, at 114.

[8] Canwest; San Remo Macaroni Company Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1998) 98 ATC 4578; Bertran v Vanstone [1999] FCA 1753, at [21].

[9] Exhibit 'GTF-3' to the exhibit of Gregory Tobin sworn 2 September 2014.

[10] In the affidavit in support of the Councils' summons, the solicitor for the Councils referred to, exhibited, and relied upon two recent decisions of VCAT, being Herington v Department of Transport, Planning and Local Infrastructure [2014] VCAT 1026, and Donnellan v Linking Melbourne Authority [2014] VCAT 1027, no doubt in order to support their contentions regarding the existence of the business case and its likely contents. No objection was taken by the Minister and the State to the Court receiving the decisions into evidence (notwithstanding s 91 of the Evidence Act 2008 (Vic)) presumably on the basis that the findings of the Tribunal members in both cases support any argument they may later seek to advance in respect of any claim that the business case was immune from inspection on the grounds of public interest immunity). Having regard to the fact that this is an interlocutory application, and the solicitor has deposed to matters based upon 'information and belief', I have received the VCAT decisions into evidence and considered their contents for the purpose of determining this application only.

[12] Murphy v State of Victoria, proceeding no SCI 2014 01911, see [2014] VSC 404 per Croft J.

[13] [1986] FCA 368; (1986) 12 FCR 257, at 265, see also ASC v Somerville, at 40-41.

[17] [1996] 2 All ER 302 at 315-366.

[18] [2009] VSC 215.

[21] (1986) 10 FCR 78, at 82

[22] [2002] FCAFC 327