1. On Respondent's application, matter adjourned to 2nd November 2005 at 10:00am (5 days allocated).

2. Respondent to issue any summons to witness or file and serve any list of documents to which it seeks access by 4:00pm on 12th September 2005.

3. Applicant to respond to such summons or list by 4:00pm on 26th September 2005.

4. Respondent to file and serve any further affidavit or material upon which it intends to rely on or before 10th October 2005.

5. Applicant to file and serve any further affidavit on material on which it intends to rely by way of reply on or before 17th October 2005.

6. Parties to exchange written submissions on which they intend to rely on or before 26th October 2005.

7. Respondent to pay Applicant's costs thrown away by reason of the adjournment, such costs to be taxed in default of agreement.

8. Liberty to apply.

Mr Garde Q.C., with Mr Fox, instructed by the Victorian Government Solicitor.

Mr North S.C., with Mr Nugent, instructed by Mitrakas Savas & Co., Lawyers & Consultants.

1 In this matter the respondent, Bradto Pty Ltd ("Bradto") is seeking an adjournment based upon its need to have access to a large number of documents or types of document allegedly possessed by the applicant, the State of Victoria ("the SOV") or related persons or entities. It also seeks, presumably pursuant to s.104 of the Victorian Civil and Administrative Tribunal Act 1998 ("the Act"), that a number of summonses to witnesses requiring the production of extensive lists of documents be issued out of the Registry. The SOV opposes each such application, effectively alleging that this is a time wasting procedure adopted for commercial reasons. Mr Garde Q.C. with Mr Fox appeared on behalf of the SOV. Mr North S.C. with Mr Nugent appeared on behalf of Bradto.

2 Some of the following findings of fact are made solely for the purpose of dealing with these applications relating to an adjournment and to documents, and do not represent findings "on the merits". Some facts are non-controversial. Others, which relate specifically to these applications which I am now determining, are made as findings of fact. This is particularly so in relation to the procedural history of the matter.

3 The principal application which lies behind the subsidiary applications is one by the SOV for interlocutory and permanent injunctions. At least for the purposes of the present discussion, Bradto, pursuant to a Crown lease, is the tenant of a portion of the land commonly known as "The Triangle" in St. Kilda. Debate about, and interest in, the development of the site has attracted considerable media attention, and it is well known. Bradto operates the Palace Entertainment Complex on the land which it leases. Immediately adjacent to it is a building popularly known as the Palais Theatre operated by an entity called Tymbrook Pty Ltd ("Tymbrook"), which is also the tenant of that adjoining land. I accept that, for all relevant purposes, the provisions of the Crown lease relating to Tymbrook are identical to those in Bradto's lease. Bradto's lease, which has a term of fifty years, on its face expires on 31st March 2006.

4 As is common knowledge, the SOV or its agents called for expressions of interest in relation to the development of The Triangle site. A list of some fifteen interested parties has now been reduced to a short list of three. So as to be able to provide relevant information to the tenderers and assist the tendering process, the SOV wishes inspectors or examiners to have access to both sites. These inspectors will test for the presence of asbestos or other hazardous materials, amongst other things. This may involve the drilling of holes, some excavations, and the like. Both Bradto and Tymbrook oppose access being given to such individuals for such a purpose. Certainly Bradto is arguing that such access is not permissible pursuant to the terms of the lease, and the transcript of a hearing before Deputy President Aird on 30th August last reveals that similar issues are being argued in the Tymbrook case. Thus, the SOV is seeking the interlocutory and permanent injunctions referred to above.

5 The SOV also commenced Supreme Court proceedings by way of writ and originating motion against both Bradto and Tymbrook, seeking, as I understand it, relief of a similar nature. The matters were not heard together. Having heard arguments concerning the application of the SOV against Tymbrook, on 29th July 2005 the Honourable Justice Byrne ruled that the Supreme Court of Victoria had no jurisdiction to deal with the matter. As a result of the decision in the Tymbrook case, the SOV discontinued its proceedings there against Bradto.

6 The application against Bradto then came on for hearing at this Tribunal before Senior Member Davis on 29th August last. The matter had been fixed for hearing on 30th August, and Bradto was seeking an adjournment because of material served upon it on 26th August and the absence of the natural person who effectively controls Bradto from whom instructions might have to be obtained. Reading the transcript of that hearing, I have little doubt but that it was the absence of this person that was the main reason for the application for, and granting of, an adjournment. Such adjournment was opposed by the SOV, and reference was made to the fact that the material served and concerning which instructions would have to be obtained was basically the same material which had been relied upon in the Supreme Court proceedings and with which the parties were well familiar. In any event, Senior Member Davis, with what seems to me to be some reluctance, granted the adjournment, emphasising that, should he be hearing the matter, there would need to be "a very, very good reason for any further adjournments". Very sensibly, he also suggested to the parties that, on the adjourned date, the matter should proceed as a final hearing rather than a hearing relating solely to an interlocutory injunction. The parties did not actually consent to this, but there seems to have been minimal, if any, opposition to it, and indeed the idea seems to have been welcomed. The clear understanding conveyed by the transcript is that it was a final hearing which was to proceed on the adjourned date and Senior Member Davis' orders reflects this. Nowhere in the transcript of proceedings before Senior Member Davis can I find reference to the fact that the application of the SOV against Tymbrook was listed before Deputy President Aird on the following day. Similarly, nowhere in the transcript of the proceedings before Senior Member Davis can I find any clear reference to the fact that Bradto considered itself disadvantaged by reason of lack of access to documents. The applications in respect of both interlocutory and permanent injunctions were adjourned and refixed, with, as I have stated, a clear understanding on the part of the parties that what would be conducted on the adjourned dates would be a final hearing. A timetable was set for the filing and serving of material upon which reliance would be placed. No order was sought, or made, in relation to discovery or access to documents.

7 On 30th August 2005, the matter of the SOV against Tymbrook came on before Deputy President Aird. I should say that, whilst I accept that there are great similarities between the actions against Tymbrook and Bradto, separate representation exists for each. There is no suggestion of some type of joint defence being conducted. Before Deputy President Aird, counsel for Tymbrook sought an adjournment, this essentially being based on the desire to have access to documents, a request pursuant to the Freedom of Information Act 1982 having been made. I should add that such a request had also been made by Bradto in January of this year, but was not pursued and was ultimately treated by the SOV as having been abandoned.

8 Returning to the proceedings before Deputy President Aird, she raised a question of the wisdom of both cases, against Bradto and Tymbrook, being heard together. The impression gained is that she thought this would be a sensible approach to adopt. However, the SOV preferred to keep to the timetable already established in relation to Bradto. Whilst the matter does not seem to have been the subject of earnest debate, ultimately the two cases were not listed together. Whilst the application involving Bradto had been fixed for the 6th, 7th and 12th September, the Tymbrook case was fixed for the 2nd, 3rd and 4th of November.

9 The case against Bradto having been removed from the list on 30th August and fixed before me on the dates referred to above, on 31st August 2005 Bradto made a request pursuant to the Freedom of Information Act in respect of various documents. On the 2nd September 2005 draft copies of the various summonses to witnesses to produce documents were forwarded by the solicitors for Bradto to the Victorian Government Solicitor. An affidavit sworn 5th September 2005 by Mr Peter Mitrakas, solicitor for Bradto, foreshadows this present application for an adjournment on the basis of the need for discovery so as for Bradto to be afforded a fair opportunity to present its case.

10 With considerable reluctance, and whilst bearing in mind the warning given by Deputy President Davis about further adjournments, I am prepared to grant the application for adjournment for reasons which I shall set out shortly. I am not prepared to direct that the assorted summonses to witnesses be issued out of the Registry. Had they already been issued, I would have received favourably an application that they be quashed. I shall deal with them firstly.

11 There are seven such summonses. Almost all seek production of a myriad of documents or categories of documents. If one took, for example, the summons addressed to the proper officer of the City of Port Phillip, there are approximately seventy documents or categories of documents of which production is requested. Some of the categories are of amazing breadth - for example, "All proposals, reports, or schemes prepared for, by or on behalf of, the State of Victoria, relating to the development of the St. Kilda foreshore between 1989 and 2005". The fifteen proposals by the interested parties are sought. All notes, minutes, reports, correspondence or other documents relating to the tender process since 30th June 2004 are sought. The list goes on and on. Some of the documents sought in the various summonses would clearly be privileged. Other categories are almost nonsensical - for example, the summons addressed to Sue Nolen, Assistant Victorian Government Solicitor, requires production of "all documents evidencing that the Palace Entertainment Complex has been trading as such since 1985". The Palace Entertainment Complex is the operation run by the respondent.

12 Various things are to be borne in mind. This Tribunal is not a court of pleadings. Whilst it is bound by the rules of natural justice and obviously must decide matters fairly and properly, it is also obliged to conduct proceedings with as little formality and technicality, and determine them with as much speed, as the requirements of the Act, the enabling enactment and the proper consideration of the matters before it permit - see s.98 of the Act. Also it can inform itself as it thinks fit.

13 Furthermore, regardless of the above, were these summonses the subject of argument in the setting of a court rather than this Tribunal, in my opinion they would be quashed. Firstly, many of the documents sought are not relevant to the issues between the parties, even accepting the definition of those issues as advanced on behalf of the respondent. The key issue is the interpretation of one clause of the particular lease. Does it permit access of the type requested by the landlord? A second issue raised by the respondent could be described as the "ulterior motive" issue. Does the landlord have some ulterior motive for seeking this access? Whether or not this in fact be relevant - and the SOV asserts that the purpose as opposed to the fact of the access is irrelevant - in my opinion this is linked to the interpretation question referred to above. The third issue as defined by the respondent is whether the persons who will perform the inspection are properly agents of the landlord or other parties, or are acting for reasons unrelated to the tenancy. I accept this as an issue, but one of comparatively narrow compass. In my opinion, the vast bulk of the documents of which production is sought relate to none of these issues. How, for example, the detailed bids of the unsuccessful tenderers could be relevant remains a mystery, even leaving to one side questions of confidentiality. It may be that, buried amongst the various schedules of documents, are requests for documents which have not already been produced and which may have some relevance, however marginal. I am certainly not going to attempt to disentangle these and it would be oppressive for the SOV, those instructing it, or others, to have to attempt same.

14 The one exception may be the summons addressed to the agents responsible for carrying out the inspection, they being Noel Arnold and Associates. The schedule of documents attached to it is comparatively short. Even then, it seeks, for example, "All documents (including copies), relating to the entry upon and examination of: ... (c) The Palais; and/or (d) The land the subject of the Palais Lease". The Palais is the building the subject of the SOV's action against Tymbrook. Some documents relating to the appointment of Noel Arnold and Associates may have the potential to be relevant. I would not direct the issuing of that summons in its present form, but it is at least "closer to the mark" than the others.

15 Secondly, with the possible exception of parts of the Noel Arnold summons, the summonses are clearly oppressive. The burden which would be placed upon the various recipients is totally undue and unreasonable. The volume and breadth of material requested is quite staggering. I regard the summonses as being oppressive. Further, such things as the request for the details of the bids of the various tenderers, successful and unsuccessful - an issue which may be of commercial importance to the respondent but has no relevance to the issues to be determined in this case - raises a considerable doubt as to whether the summonses have been issued bona fide and as to whether the documents specified are sought not for the purpose of this proceeding but for some ulterior purpose. This in turn leads to the conclusion that the summonses, in their present form, are an abuse of process.

16 Thus, for a variety of reasons, bearing in mind both the nature of proceedings before this Tribunal and the law generally in relation to the issuing of such summonses, I refuse to direct that they be issued.

17 As stated, I am prepared to adjourn the matter. Many would consider that the approach adopted by Bradto in relation to these documents and this adjournment smacks of obfuscation and delay for commercial purposes. Mr Garde, on behalf of the SOV, submitted as much. Whether or not that be the case, there is certainly a flavour of pedantry of quite high order. However, in the interests of fairness, I propose to allow the respondent the opportunity of preparing a sensible list of documents or categories of documents which are or may be relevant to the issues as defined, and to which it seeks access. As stated, I make this order with considerable reluctance. I have borne in mind such matters as the previous Freedom of Information Act request which was not pursued; the failure of the respondent to raise before Deputy President Davis in any meaningful way the need for access to documents, this failure occurring as recently as 29th August last; the apparent preparedness to proceed to a final hearing evinced on that day; and the last minute nature of the present applications. However, given the possibility that some relevant documents not already produced may exist, I am prepared to give to the respondent the opportunity, very much limited in terms of time, to produce a serious and sensible list of documents or categories of documents to which it seeks access.

18 In granting this adjournment, I am bearing in mind that there is some overall urgency in relation to the principal application by the SOV. Clearly it wishes to adhere as closely as it can to the timetable for the proposed development at The Triangle site. It wishes neither to disenchant the present tenderers by reason of delay or be compelled to start the process all over again. However, I am not convinced that there is such pressing urgency that the immediate disposition of this matter is required. The tenders, or expressions of interest, relate to The Triangle site as a whole. This in turn involves the Palais, and thus the case involving Tymbrook. That case is not fixed for hearing until November. Even if the ultimate result in both cases were in favour of the SOV, the examination and inspection of the Palais site could not be conducted until some time after the November dates and doubtless there would then be a further delay whilst a report was prepared. Despite Mr Garde's arguments, I am not impressed in relation to the immediate urgency of the situation. As frustrating as this delay might be for the SOV, in my opinion the overall urgency of the situation is outweighed by the need for procedural fairness in relation to this case, particularly as the Tymbrook case, involving virtually identical issues, is not to be determined until November.

19 In relation to that matter, in my opinion both cases should be heard either together or sequentially. I shall fix them both before me commencing 2nd November, and allow a total of five sitting days, unless there is some strong and convincing argument to the contrary. The Tymbrook case had not been allocated to a judicial member. A judicial member is required in each case because of the permanent nature of the injunction sought. With some inconvenience, I can make myself available for those days. To my mind, there are obvious advantages if the cases are heard either together or sequentially by the same judicial member. Given that the issues are virtually identical, the risk of there being contradictory findings in relation to adjoining buildings on the same site is eliminated. Considerable duplication of litigation is also eliminated. Apart from the considerable amount of common documentation and submissions, many of the deponents of affidavits who are to be cross examined are the same in each instance. There has been no good reason advanced why such witnesses should have to attend twice and be twice cross examined about many of the same issues. Very properly, this possibility was raised and urged by Deputy President Aird. I am in full agreement, and I fix the cases accordingly.

20 In the case of Bradto the parties were approaching the applications as if this were to be a final hearing rather than one for an interlocutory injunction. I note that, whilst Senior Member Davis adjourned all applications to these days, his order refers to the hearing being conducted as a "final hearing". That reflects what was discussed before him. I note that the question of a final hearing was also raised before Deputy President Aird in relation to the Tymbrook case. Indeed, I note that Mr Garde adopted the Deputy President's suggestion of a final hearing as being a saving for everybody and Mr Hammond QC, who was appearing on behalf of Tymbrook, urged a similar approach in no uncertain terms. "Let's get it on for a final hearing", he said. Whilst I do not have the precise order in front of me, it seems to me that Deputy President Aird in fact listed the matter of Tymbrook for final hearing. Accordingly, it seems to me that both matters should proceed as described above and as final hearings. As the matter of Tymbrook is not currently before me, I shall, of course, entertain any argument that may be advanced on its behalf should this course of action be opposed.

21 Mr Garde raised the issue of the application for an interlocutory injunction being before me. He referred to the serious issue to be tried and the balance of convenience. I am not at this stage prepared to deal with an application for an interlocutory injunction. Certainly in the case of Bradto, a final hearing was what was ordered and envisaged, even if it could not be strictly described as being by consent. Further, I am concerned that the granting of an interlocutory injunction may in fact be the equivalent of granting the final relief which is sought. That is particularly so when the hearing in relation to such final relief is in the not too distant future. I am not dismissing or otherwise dealing with the application for an interlocutory injunction. Should there be, in its opinion, any further untoward delay, the SOV can always bring that application on again.

22 One matter which I wish to make clear is that I regard this application for an adjournment as being provoked by the request for access to documents and it is granted on that basis. The adjournment having been granted, it provided a convenient opportunity to fix the cases together or sequentially. Had this application for an adjournment not been made, I would have complied with the original timetable and proceeded to hear the matter of Bradto.

23 The matter is adjourned for final hearing on 2nd November 2004 at 10:00am. Should the parties come to some agreement concerning the matters being heard sequentially rather than together, I may alter the commencement date of this case if so requested. However, it is still to be determined in the five sitting days commencing 2nd November. I would also repeat that I wish to avoid duplication of litigation or the need for witnesses to attend twice. In relation to the discovery of documents, I refuse to direct that the various summonses to witnesses prepared on behalf of Bradto be issued. Bradto is given until 4:00pm on Monday next, the 12th September, to file and serve either any summons to witness, or list of documents to which it seeks access. I expect such list or such summons to represent a serious and sensible request for relevant documents and not to be oppressive.

24 I shall hear the parties on the question of costs.