1. No further order made in relation to discovery of documents.

2. Respondents to file and serve any further affidavit material on which they seek to rely by 5:00pm on 21 October 2005.

3. Applicant to file and serve any further affidavit material on which it seeks to rely by 5:00pm on 25 October 2005.

4. Parties to file and serve written submissions on which they intend to rely by 5:00pm on 28 October 2005.

5. Costs reserved.

6. Liberty to apply.

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

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

Mr Hammond Q.C., with Mr Reilly, instructed by Cornwall Stodard, Lawyers.

As was pointed out by Mr North SC after the following ruling was delivered, the reference in paragraph 17 to "interlocutory relief" should be a reference to "permanent injunctions".

1 I have proceeded as rapidly as is possible to a ruling in relation to these matters, bearing in mind that they are fixed for hearing on 2nd November next and that I shall be away for one week in the immediate future. It is important that this ruling be given so that the manner in which the matters are to be conducted is clear and there is no obstruction to the timely determination of them. It should also be remembered that these matters came before me by way of a directions hearing, a process which might normally be expected to take one half hour, but which in fact took many hours longer than that.

2 On 7th September last I gave a detailed ruling in relation to an application by the State of Victoria ("SOV") against Bradto Pty Ltd ("Bradto"). Whilst Tymbook Pty Ltd ("Tymbook") was not before me on that occasion, as I understand it and whilst separate defences are being maintained and separate representation engaged, the application against each respondent involves similar issues. I have set out the factual background in my ruling of 7th September last and I have also set out the issues as I saw them. On 7th September, with very considerable reluctance, I granted to Bradto an adjournment of the hearing of the matter. I granted that adjournment so as to afford to Bradto the opportunity of preparing a serious and sensible list of documents and categories of documents to which it sought access, these to be provided by SOV. I did not make any formal order for discovery. I granted the adjournment for this purpose in the context of a request by Bradto to issue a batch of subpoenas which, in my view, were an abuse of process, oppressive, and directed towards matters that were irrelevant to the issue to be determined in these particular applications.

3 This adjournment and opportunity to request, in a sensible fashion, access to relevant documents or categories of documents was not to be interpreted as an invitation to embark upon a fishing expedition or engage in an exercise which would be just as oppressive and irrelevant as the subpoenas which I refused to issue. The opposite is the case. I would have thought that was clear from the remarks contained in my ruling of that date.

4 Further, I would yet again point out that there is no discovery process as such at this Tribunal. This is not a court of pleadings. The orders which I made on 7th September were not orders for discovery in the strict sense. It is to be noted that there was no requirement for any affidavit of documents. The orders, which I made, with very considerable misgivings, and in the interests of fairness, were intended to give to Bradto a final opportunity to seek access to any relevant documents which it did not already possess. In this regard, and bearing in mind that the matter has already been to the Supreme Court of Victoria, the number of documents already in the possession of Bradto as at 7th September was quite considerable.

5 On 12th September 2005 the solicitors for Bradto forwarded to the Victorian Government Solicitor ("the VGS") a list of documents, and particularly categories of documents, to which access was sought. The VGS has sent to those solicitors some four lists of documents, setting out documents which have been made available, documents or categories of documents which would not be made available for reasons such as relevance, legal professional privilege, and public interest immunity, and providing parts of other documents which have been "masked". Bradto is dissatisfied with the documentation that has been provided. Accordingly, it brought the matter back on before me by way of a directions hearing. Tymbook has a similar, but not identical, application. Each has provided a list of minutes of proposed orders.

6 Tymbook comes before me by way of a different route. It has previously sought from SOV documents pursuant to the Freedom of Information Act 1982. I gather that it has had no response which it considers satisfactory in that regard, although the application is apparently being processed. In any event, no application pursuant to the Freedom of Information Act is before me and I do not intend to comment further upon it, save as follows. Disputes concerning applications pursuant to the Freedom of Information Act come to this Tribunal in a particular way. There is no suggestion that the relevant mechanisms are operative in the present situation. Attached to orders made by Deputy President Aird on 30th August 2005 is the following notation:-

"Note: The Tribunal notes that the Applicant has agreed to respond to the Respondent's Freedom of Information Request dated 26 August 2005 by 23 September 2005."

In fact, by a preliminary letter warning of problems on 9th September 2005 and a detailed letter of 16th September 2005, the Department of Sustainability and Environment did respond to the request. The response, which is quite lengthy, and which refers to authorities, basically claims that the request is unclear and that the volume and breadth of documents sought meant that the provisions of the Freedom of Information Act relating to voluminous requests were likely to apply if the scope of the request was not reduced. Reference is made to the time and costs involved in servicing the request in its present form. Some advice is given concerning a narrower focus of the request. Thus, there was a response within the specified time. Tymbook is not happy with that response. Accordingly, as I understand it, it is now seeking discovery of various documents and categories of documents, no such order for discovery having been earlier made.

7 On 4th October 2005 the solicitors for Tymbook wrote to the VGS on behalf of SOV seeking discovery of various documents. This letter referred to orders made by Deputy President Aird on 30th August 2005, which orders included a note that SOV had agreed to respond to Tymbook's Freedom of Information Request by 23rd September 2005. Such orders included the reservation of liberty to apply for further directions. In the meantime, the VGS had, as a matter of what it has described as courtesy, forwarded to the solicitors for Tymbook copies of the documents which it had forwarded to the solicitors for Bradto - particularly, what have been described as historical documents - and other documents relevant to Tymbook. Tymbook is dissatisfied with the documents with which it has been provided, and seeks further orders in this regard.

8 SOV has resisted these applications. It maintains that it has complied with the orders which I made. It relies upon, inter alia, the affidavits of Sally Jane Robertson, a solicitor in its employ, as to the various steps which have been taken in order to make available all even remotely relevant documents. It opposes the making of any further orders.

9 On this occasion, Mr Garde QC, with Mr Fox, again appeared on behalf of SOV. Mr North SC, with Mr Nugent and Mr Hopper appeared on behalf of Bradto. Mr Hammond QC, with Mr Reilly, appeared on behalf of Tymbook.

10 Given the comparative urgency of the ruling, time does not permit me to analyse in detail the very lengthy arguments which have been put to me. However, I prefer and accept the arguments advanced by Mr Garde and Mr Fox on behalf of SOV. I am not prepared to make any further orders as to documents in this matter.

11 I accept and prefer the submissions on behalf of SOV for the following reasons.

12 I again repeat that this is not a court of pleadings. Counsel on behalf of the respondents referred to such things as non-compliance with "the Rules" and to the procedures that would be adopted in the Supreme Court of Victoria. Of course, other than those matters to which I have referred in the earlier ruling and particularly in paragraph 12 thereof, there are no rules as such relating to discovery at this Tribunal.

13 Mr North referred me to various decisions of this Tribunal, particularly in the Retail Tenancies List, where discovery has been ordered, along with affidavits of documents, and to various observations made in such cases. These are decisions such as Jacques Nominees Pty Ltd v National Mutual Trustees Pty Ltd (2000) 16 VAR 152, being a decision of Deputy President Macnamara, and to other decisions made by him, as well as some observations which I made in the case of Golem v Transport Accident Commission [2002] VCAT 319; (2002) 19 VAR 265. The thrust of this submission is that, as a matter of fairness, proper practices and procedures as operating in the courts can and should be adopted in a matter being contested adversarially such as the present one, and these practices and procedures include formal discovery. As was stated by Deputy President Macnamara in Jacques Nominees, the Victorian Civil and Administrative Tribunal frequently adopts the Supreme Court Rules as a guide to practice and procedure in the Tribunal, those particular observations being made in the context of an application for Anton Piller orders. In my opinion the submission of Mr North should be rejected. It overlooks the following.

14 Firstly, whilst rules of practice and procedure adopted in the courts may be, as described by Deputy President Macnamara, "a guide", this Tribunal, pursuant to s.98(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 ("the Act") is specifically not bound by the practices or procedures applicable to courts of record except to the extent that it adopts them. Obviously, circumstances may arise where it desires to adopt them. Secondly, reference is made to my observations in Golem, but not to those observations in full. It is also to be remembered that, in Golem, what I was determining was whether an onus of proof existed (I ruled that it did not) and, in the absence of such burden of proof, the order in which parties were to present their evidence. So that there was not complete chaos, and the parties knew the sequence of calling evidence, some determination was required and the rules of procedure in courts had the potential to be of assistance. I endorsed the following statement of Fox J in Kuswardana v Minister for Immigration and Ethnic Affairs [1981] FCA 66; (1981) 35 ALR 186 at 199:-

"We should be cautious in trying to apply to procedures and practices operating in an administrative setting those which apply in a judicial setting. This is not to say that an administrative tribunal may not, subject to the regulations governing it, find it convenient or helpful to follow in some respects procedures which over the span of many years have been found by courts of law to be most conducive to the interests of justice."

15 In no way do I resile from the adoption of that statement or that approach. However, as can be seen, it is a statement which contains a number of qualifications. Mr North referred to a statement made by me at page 7of the judgment in Golem. That paragraph reads in full as follows:-

"In summary, it seems to me that the following is what could be described as a general approach that can be adopted in an adversarial-type case, such approach being consistent with the operation of the Act and with the authorities. In placing itself in the shoes of the decision-maker, the Tribunal can and frequently will gain assistance from reference to the rules of evidence and to the practices and procedures of courts of record. It is not bound by such rules, practices or procedures, but is bound to act fairly, and this includes the affording of procedural fairness. In arriving at the procedure to be adopted, it is a matter for the Tribunal itself to determine, bearing in mind the requirement for fairness, and bearing in mind what was described by Woodward J (in Macdonald v Director General of Social Security (1984) 1 FCR 354) as "considerations of natural justice or common sense". As stated, the established rules of evidence and of practice and procedure may assist in this regard, and particularly where the matter is proceeding as an adversarial contest."

16 In the present case, I specifically did not make an order for discovery in favour of Bradto. I rejected an application to issue oppressive subpoenas which constituted an abuse of process. Hoping that the "common sense" referred to by Woodward J would prevail, I made the orders which I did.

17 Whether or not the rules of practice and procedure in a court of record are to be adopted at this Tribunal will vary from case to case. The application before me essentially relates to injunctions which in turn relate to specific issues of a compass which I consider to be reasonably narrow. Despite urgings, I am not going to determine matters which I do not regard as being related to the applications before me. These are applications for interlocutory relief which centres upon the interpretation of a clause in a lease. I have opted not to make formal orders for discovery, particularly not of the breadth and irrelevance of those suggested. There may be cases in which the application of the formal rules of discovery should be adopted. In my opinion this application is not one of them, and in arriving at that conclusion I do not see myself as being in any way in conflict with earlier rulings of Deputy President Macnamara or in conflict with observations made by me.

18 Thirdly, Mr North, as did Mr Hammond, referred several times to the fact that the adoption of rules of practice and procedure, including discovery, were made as a matter of practice in matters in the retail tenancies list. To my mind, that is also not to the point. Each case must be considered on its merits. There is nothing in the Act, and particularly in ss.97 and 98, which places matters in the Retail Tenancies List in a different category to the matters which generally come before the Tribunal. I might add that this argument that there is something special about the Retail Tenancies List was, in the context of s.109 of the Act, discussed by His Honour Judge Davey in Stelridge Pty Ltd v Handbags International Pty Ltd [1999] VC onv R 58 - 532. Essentially His Honour stated that each case must be dealt with on the basis of its own merits:-

"... because of the characteristics that may often accompany typical disputes in such lists and not because of any inherent property of the particular list. In my opinion the proper approach ... is not a list approach but rather a case by case approach."

Whilst he was there discussing costs, I agree entirely with the principle enunciated by him.

19 In the present case, the most technical and critical of arguments were advanced. For example, there was a sustained attack upon the fact that what could be described as the affidavits of documents sworn by Ms Robertson were sworn by a solicitor rather than "the client". I had not even ordered any "affidavits of documents". In any event, I regard Ms Robertson's affidavits as being perfectly satisfactory and giving an accurate and comprehensive outline of what has occurred in relation to the search for and production of relevant documents. That is but one of several examples of a highly technical, if not "nit-picking" approach that was adopted.

20 Secondly, at least insofar as Bradto is concerned, little seems to have been learned from the earlier ruling. I might add that, whilst Tymbook was not before me in September, given that Bradto and Tymbook were effectively acting in concert in this application and that there was quite frequent reference to my ruling of 7th September, it would be surprising indeed if those representing Tymbook were not aware of its existence or content. In any event, Bradto should have been well aware of the purpose of the orders of 7th September and of my attitude towards what had occurred and what should occur. However, the request which ultimately was forthcoming was almost as oppressive as had been the bundle of subpoenas. An example of this can be found in category 14 of the documents sought which reads as follows:-

"All documents intended to be relied on at the final hearing of this proceeding, which may be injurious to the applicant's case, or which may be of assistance to the respondent's case."

This is in effect a request for general discovery.

21 Irrelevant material is again sought. I fully agree with the submission of Mr Garde, that the issues raised by SOV's application and which are the subject of this case are very limited. The basic question raised by the application which I am to determine remains whether inspectors investigating the possible presence of asbestos and other hazardous materials can, pursuant to the terms of the leases, be sent by or on behalf of the landlord, SOV, into the demised premises so as to perform the taking of samples and the like. The access to documents is to be seen in the light of this. It is not designed to provide the opportunity for a fishing expedition. Access to documents has not been organised so as to provide to Bradto and Tymbook the opportunity to gather material which might assist them in the conduct of some other proceedings which may relate, for example, to the duration of the tenancy.

22 The documents exhibited to the affidavits relied upon in the Supreme Court proceedings and those available in the present case establish the following. There are Crown leases in existence. They are registered at the Titles Office. They have Volume and Folio numbers. They have chains of title upon them. They are leases which have not expired. Bradto and Tymbook are in possession as tenants pursuant to them. The leases have within them terms and conditions.

23 It is the interpretation of one of these that is at the core of the present dispute concerning the granting of access to inspectors. In those circumstances, I fail to see the relevance of documents relating to the bids of the successful tenderers for the possible development of the site. These are the documents sought in category 13, sought by Bradto. The documents sought in relation to categories 10 and 11 are equally irrelevant to the issues which I have to determine. Each refers to the tender process. The breadth of documents sought in category 11 is particularly wide.

24 Indeed, the large number of historical documents relating to the history of the lease, and which documents have been made available by SOV, has led to the chasing of other irrelevant rabbits down their burrows. Mr North, at some length, raised issues concerning the possible right to a new and extended lease which may have come into existence following the destruction by fire of the Palais de Danse in 1968. The fact of the matter is that, whether or not some such right came into existence when a predecessor in title long before Bradto was the tenant of the property in question, there is nothing before me to suggest that any such right was ever exercised. The Certificate of Title, if I can so describe it, speaks for itself. It is a 50 year lease commencing on 1st April 1956. It is pursuant to that lease and the chain of title described upon it that Bradto occupies the land. I am not of the view that there has been in some way the inadequate provision of relevant documents in relation to this issue.

25 Similarly, Mr Hammond expounded at some length concerning the fact that the title referred to as being the original in the affidavit of Sue Nolen of 25th August 2005 in the Supreme Court proceedings is in fact a substitute Certificate of Title. The historical documents reveal the presence of an earlier lease with a different Volume and Folio number and which describes a slightly smaller area of land. It is quite clear that this earlier lease was surrendered when a small parcel of land was added to the property in question and a new Certificate of Title, with the additional parcel added and with the current Volume and Folio number, was issued. It is pursuant to that lease that Tymbook is a tenant. I read absolutely nothing into the alleged misdescription by Ms Nolen of the document in question. It is another irrelevant issue, and I do not propose to order that any further documents be made available concerning it. In any event, during the course of the proceedings, SOV made available to all concerned copies of the original lease. I could see nothing of significance which distinguished it from the substituted lease, and I can understand both how some confusion may have arisen. I attach no importance to this issue. Mr Hammond argued that an argument which he might advance concerning interpretation of the clause in question in part hinged upon the existence of the original as opposed to the substituted lease. He did not expand upon this. Nothing was said which would persuade me to make a further order in relation to it. In any event, Tymbook now has a full copy of the original surrendered lease. I can see no disadvantage to it, nor the need for any further order concerning this document.

26 The above are but a couple of examples. There are others, equally irrelevant in the context of this application before this Tribunal, such as the failure of Ms Robertson to identify with precision who it was that went through the files and brought the various documents to her before she prepared the lists. Time does not permit the setting out of other instances.

27 Some argument in relation to various documents centred upon legal professional privilege. Section 80(3) of the Act states that the Tribunal may direct that a document be produced despite any rule of law relating to privilege or the public interest. I am not prepared to so direct. I note the approach previously adopted by this Tribunal in Re South Morang Pastoral Company Pty Ltd and Whittlesea CC (2002) 11 VPR 158 where it was said that:-

"... legal professional privilege represents a sound and important principle in relation to the administration of justice and the conduct of litigation. It is based on sound public policy that should only be overruled (pursuant to s.80(3)) where there are strong and compelling reasons for doing so. There well may be circumstances where on the balance and in the ultimate interests of justice, it would be appropriate to take such a course. I recognise that there is an advantage, not just to parties to litigation, but to the conduct of litigation generally, that parties should be able to have access to legal advice on the basis that the advice is privileged and can be kept confidential unless the client chooses to waive the privilege."

I agree with that approach. It is also to be borne in mind that this particular piece of litigation has been conducted against a background of other proposed litigation. The overriding of legal professional privilege in this case may have the effect of revealing what would otherwise be confidential and privileged documents for the purposes of another case. In any event, I am not minded to make any order effectively overruling either legal professional privilege or public interest immunity. I accept what is contained in the affidavits of Ms Robertson in this regard.

28 Mr Hammond has referred me to various authorities dealing with natural justice and the manner in which this Tribunal in particular is obliged to afford it. They are well known and well respected authorities. To state the obvious, they are binding upon me and I would not attempt to quarrel with them. However, as pointed out by Mr Garde, each must be seen in the context of the particular situation with which it was dealing. This is particularly so in relation to decisions dealing with the proposition that the interests of case management should not interfere with the attainment of justice and, as said by Ashley J in Bell Corp Pty Ltd v Stevenson [2003] VSC 255, it should not be employed so as to shut a party out of litigating its case. The well known decision of the State of Queensland and Anor v JL Holdings Pty Limited [1997] HCA 1; 189 CLR 146 is frequently referred to in this regard.

29 The situation referred to in those cases does not prevail here. No party is being shut out of its capacity to litigate. No party is being prevented from presenting its case in relation to the issues currently before this Tribunal in a proper way. As I have stated repeatedly, I accept the affidavits of Ms Robertson in relation to the steps taken to provide to both Bradto and Tymbook all necessary documentation. I accept Mr Garde's submission that in excess of 400 documents have been made available, this being in a case where one might have suspected that 10 percent of those might have been relevant. I also accept that the documents which have been supplied include all relevant documents subject to any just exceptions.

30 I also return yet again to what is before me. The relief sought remains the granting of injunctions effectively permitting access to servants or agents of Noel Arnold and Associates Pty Ltd, being in turn an entity engaged by SOV, or to other servants and agents of SOV. Having Bradto and Tymbook focus upon this has not been easy. For example, in his impassioned and often entertaining address, Mr Hammond stated that SOV "want to throw us out of the Palais". He went on to say that they also, effectively, wanted to throw his client out of this Tribunal. Whether or not each such proposition be correct, the throwing out of his client from the Palais is not something which I shall be determining in this action. His statement is indicative of the approach taken which embraces issues beyond those which are before me. Similarly, Mr North referred to my determining questions of possession and the duration of the lease, submitting that his client could effectively place such issues before me. I can only again assure all concerned that I am not going to be determining issues beyond those raised by the application made to this Tribunal. Whilst Mr Garde has foreshadowed some alteration to the wording of the relief sought, the application which must be determined by me does not go beyond that founded in the Notice of Interlocutory Relief first issued out of this Tribunal. Obviously the parties can raise relevant defences. Nothing which has been put before me has persuaded me that there are relevant defences, the preparation of which has been hindered by an inability to access documents. Such allegations have been put in the broad. There has been no descending to particulars in the sense of missing documents that might assist the presentation of a particular and relevant defence. At times the arguments have basically been "who knows what we might find?". So far the giving of access to a large number of documents has only produced a request for more, whilst the basic issue of relevance has been ignored.

31 It was interesting that, during his reply, Mr Hammond, in defending an allegation that his client had placed nothing on affidavit, stated that this Tribunal "constantly receives material not on affidavit". He also referred to the lack of formality required here. I agree entirely. The basic requirements are to deal with matters fairly and according to their substantial merits and to be bound by the rules of natural justice. In so doing, the rules of practice and procedure may be adopted but there is no obligation in that regard. I have already referred to the statutory requirements in relation to the lack of formality and technicality, and the requirement of speed.

32 I am perfectly satisfied that SOV, through the VGS, has both complied with the order which I made in relation to Bradto and, whilst no order is in existence, has supplied Tymbook with all documents relevant to what is actually involved in this application. Where it has not made documents available for reasons of legal professional privilege, Ms Robertson has specified this in her affidavit and has adequately dealt with that issue. The same can be said of the one document not produced because of public interest immunity.

33 Indeed, the wealth of documentation made available appears to me to have gone well beyond what was required. As a matter of courtesy, and without there being any order made, SOV provided to Tymbook sufficient documentation to involve Mr Hammond and his junior in spending the entire weekend going through it. The discovery now sought by Tymbook is broad in the extreme. Even if I were minded to order discovery, which I am not, it would not be in this form, which I regard as oppressive and embracing all sorts of irrelevancies. That is so in relation to not only the orders proposed by Tymbook, but also by Bradto. For example, a request for "the files and records maintained by the State of Victoria relating to the site occupied by the Palais Theatre", whether or not it be terminology used in the affidavit of Ms Nolen, is of staggering breadth in the context of the present application, as is the request for "the files relating to the Palais Theatre". I repeat that I accept what has been sworn to by Ms Robertson and accept that all documents relevant to the present application have been made available and that no unfairness has been visited upon the respondents.

34 There is nothing that has been put before me which in any way persuades me that there has been a failure by SOV to produce and make available all relevant documents which should be made available; that any unfairness has been done to either Bradto or Tymbook so as to prevent or inhibit the preparation and presentation of the particular application before me; or that further orders in relation to documents should be made.

35 I further agree with Mr Garde that this whole exercise has involved considerable wastage of time. Such things as complaints concerning the order in which documents were presented or the quality of photocopying could surely have been solved by simple requests and discussions not involving the use of Tribunal time. Indeed, I note from the affidavit of Ms Robertson that there seems, at least initially, to have been progress made in relation to the inspection of the documents without complaint on the part of Bradto.

36 Accordingly the only orders which I shall make are those proposed by the State of Victoria and an order in relation to the filing and serving of written submissions.

37 The only other order which I shall make is that, in relation to the claim against Tymbook, Tymbook and SOV file and serve any written submissions upon which they intend to rely on or before 26th October 2005. As the matters are to be heard together, that brings the procedural steps in the application against Tymbook in line with those in the application against Bradto.

38 I shall hear the parties on the questions of costs.

(Following further discussion, a timetable was set in this regard).