Tanner v Shergold [2004] FCA 176 | Case summary

Federal Court of Australia|1997-06-30|Before: Marshall J

The Applicant refers to the matters set out in Part C including the Schedule and contends that the public scrutiny referred to therein and enabled by the release of the documents may have the tendency to subject to criticism, make accountable, lower the credibility of, impugn the integrity of, damage the reputations of and/or otherwise embarrass or prejudice the Government, Mr Reith, the Department and/or its officers including the Respondent. The Respondent took into account those irrelevant considerations. 78. Mr Reith made it known to the Respondent that he did not want the documents released or alternatively the Respondent presumed that Mr Reith and/or other members of the Government did not want the documents disclosed and took those irrelevant matters into consideration. 79. The Respondent took into account in a collective or global fashion each of the considerations upon which he relied, and therefore with respect to each of the matters dealt with in the documents he took considerations into account in relation to each, properly relevant only to some of those matters. 80. Accordingly, the Respondent by making the decisions improperly exercised the powers conferred by the FOI Act, in terms of s.5(1)(e) of the Act. Exercise of power for a purpose other than for which it was conferred

The Applicant refers to and relies on the matters set out in Part C including the Schedule being those matters that were in the public domain at or about the time that the Respondent issued the certificates. 82. The dominant or substantial purpose for which the Respondent exercised the power to sign each of the Certificates was to prevent the public scrutiny of the documents and, in turn, the opportunity for the public to determine the extent of the involvement of the Government, Mr Reith and the Department in the conduct of Patricks. Further, the Respondent knew that the public scrutiny enabled by the release of the documents may have the tendency to subject to criticism, make accountable, lower the credibility of, impugn the integrity of, damage the reputations of and/or otherwise embarrass or prejudice the Government, Mr Reith, the Department and/or its officers including the Respondent. In signing the Certificates the Respondent intended that such public scrutiny be prevented, for the purpose of diminishing or eliminating those tendencies. 83. Accordingly, the Respondent made the decisions for a purpose other than a purpose for which the respective powers to issue certificates are conferred and thereby improperly exercise the powers in terms of s.5(1)(e) of the Act." 30 The "public interest" considerations referred to as being set out in Part E are contained in paragraph 46 of the contentions: "46. The Applicant contends that each of the following considerations constitute positive grounds as to why it is in the public interest for the documents to be disclosed: (i) the need for open government and transparent decision-making in the maintenance of good and accountable government; (ii) the need for open government and transparent decision-making in the maintenance of public confidence in the workings of government; (iii) the fact that the scrutiny of government decision-making is central to the effective operation of the doctrine of Ministerial responsibility and that the capacity of the public to assess available evidence which may shed light on the question of whether the Australian public has been misled is a necessary adjunct to the effective operation of that doctrine; (iv) the need for public scrutiny and open public debate in the development of government policy; (v) the fact that the disclosure of the documents would enable the public to evaluate the evidence and ascertain the role of the Government in the waterfront dispute in circumstances where there are serious allegations in the public domain of the kind set out in Part D; (vi) the fact that the disclosure of the documents would allow the public to assess the performance of Mr Reith and/or the Department and its officers in relation to waterfront reform, the merits of their actions and the legality or otherwise of those actions; (vii) the strong public interest grounds for learning how and why the Government, Mr Reith and/or the Department and its officers sought advice on waterfront reform and whether the advice it received canvassed illegal action; and (viii) the strong public interest grounds in clarifying the degree to which the Government, Mr Reith and/or the Department and its officers misrepresented their actions and involvement in the waterfront dispute and the extent to which they were aware of the possible illegality of their actions." 31 The "allegations in the public domain" referred to in paragraph 46 are set out in paragraph 45: "45. On the basis of the matters set out in Part C including the Schedule, the Applicant contends that the following allegations were in the public domain at or about the time when the Respondent signed the Certificates: (i) the Government arranged, authorized and funded a secret strategy ("the strategy") the elements of which were: to organize and assist in the training of a replacement stevedoring workforce; to provoke a dispute with the MUA involving stevedores dismissing their employees; and to hire a replacement non-union workforce. The strategy was primarily the responsibility of Mr Reith and Mr Sharp and was prepared by officers of their Departments utilizing the consultants and the reports provided by them. (ii) in pursuing that strategy the Government was willing to and did embark upon potentially unlawful conduct in contravention of the Workplace Relations Act 1996 (Cth) thereby exposing the Commonwealth to substantial claims for damages and exposing the Australian community to the risk of widespread industrial confrontation; (iii) the Government and in particular Mr Reith and the Department and some of its officers sought to initiate and or facilitate an industrial precedent for the use of aggressive industrial relations tactics against unions and their members by employers generally; (iv) the Government and in particular Mr Reith and the Department and some of its officers colluded and conspired with others, in particular Patricks and the National Farmers Federation, to bring about the strategy and in so doing made commitments to finance and have subsequently financed substantial liabilities for redundancy payments of Patricks at a cost to the Australian taxpayer, other stevedoring companies and the consumers of waterfront services; and (v) the level and extent of the involvement of the Government, Mr Reith and the Department and some or all of its officers in the strategy has not been truthfully represented to the Australian public." 32 The "matters set out in Part C" are contained at paragraph 39 to 44 of the contentions: "C. WATERFRONT DISPUTE - BACKGROUND TO FOI APPLICATION

In or about April 1998, Patricks determined to replace approximately 1400 employees who were members of the MUA with other employees who were not members of the MUA ("the conduct of Patricks"). 40. The conduct of Patricks was based upon, guided by, or otherwise influenced by, advice and information provided to Patricks by Mr Reith, and/or officers of the Department, including the Respondent. 41. The advice and information provided to Patricks by Mr Reith and/or the Department and its officers was in turn based upon, guided by, or otherwise influenced by advice, information and recommendations contained in the documents. 42. The conduct of Patricks became a matter of national significance and widespread media and public debate in and after April 1998. 43. The extent of the involvement of the Government, Mr Reith, the Department and its officers in the conduct of Patricks was a significant factor in the public debate and a matter of great public interest. This was particularly so due to publicly made allegations that the conduct of Patricks was unlawful and that the Government and Mr Reith, with the assistance of officers of the Department, had conspired with Patricks to bring about that conduct. 44. The Schedule sets out the relevant circumstances relating to the waterfront dispute that were significant factors of public debate and matters of great public interest. Each of the matters there set out is referred to and relied upon as though contained in these contentions, but only for the purpose of demonstrating that they formed the subject of allegations and debate in the public domain." 33 A perusal of the contentions reveals that a serious issue arises in this proceeding concerning whether the respondent properly exercised his discretion in coming to the decisions to issue the relevant certificates of exemption. That is particularly so when one considers the issues raised at paragraphs 77, 81 and 82 of the revised contentions. 34 There is more than a mere allegation that the respondent did not properly exercise his discretion. The contentions which contain the allegations are fullsome and are reinforced by a detailed document filed in the proceeding and entitled "Revised Schedule to the Applicant's Contentions of Fact and Law". That document deals with vast background factual material, which puts in issue whether the respondent exercised his discretion for improper purposes as defined in the ADJR Act. 35 Counsel for the respondent contended that the applicant, in seeking an order for discovery, is "fishing" to find out whether he has a case. The allegations raised in the amended contentions and the schedule thereto are not "bare allegations" which seek to invoke the process of discovery to determine whether the applicant has a case. However, that does not mean that the Court will make an order for broad ranging discovery. Discovery will be tightly controlled so that it is appropriate and relevant to what is required to be determined in the proceeding. 36 It must be remembered that the essential issue in the substantive proceeding is whether the decisions to issue the certificates are infected with judicially reviewable error. Discovery ought properly be confined to those documents to which the respondent had regard in coming to the decisions, with the exception of the exempt documents themselves. It may be that the discoverable documents will only be those referred to in the s 13 statement. If that is so, an affidavit of documents can be filed which says so. However, it is possible that the respondent had regard to additional documents, not referred to in his s 13 statement, in coming to his decisions. If that is so, an appropriate affidavit of documents will say so. 37 Despite being headed "List of Specific Documents to be Discovered", the documents sought to be made discoverable in the applicant's prepared list of documents are broad in nature. I set them out as an appendix to these reasons, marked "A". 38 The relevant documents in this proceeding for discovery purposes are those contained in paragraph 1 of the list of documents, with the exception of the words "or any other person in providing advice or assistance to him". If the respondent did not have regard to a document, in the exercise of his discretion, it is not to the point that others assisting him may have done so. Further, the words "in relation to the making of the decision" are too wide and should be substituted with the words "in the making of the decision". 39 An exception to the paragraph 1 documents will be the exempt documents themselves. Any document can also be the subject of an application for exclusion from inspection insofar as it incorporates or refers to any exempt document, in a way which identifies the exempt document. 40 Any document in paragraph 2, and following, of the list of documents, which were considered or taken into account by the respondent in making his decision, will have been the subject of paragraph 1 and be discoverable under the category in paragraph 1. It should be noted that the category in paragraph 7(a) was not pressed. 41 As recognised by Practice Note 14, issued by the Chief Justice on 3 December 1999, the modern approach to discovery is for the Court to: "…mould any order for discovery to suit the facts of a particular case."

In other words, it is appropriate to keep discovery within proper bounds. It is not appropriate, in this matter, that discovery be used as a vehicle to examine issues extraneous to those which are necessary to be determined in the substantive proceeding. Proposed categories of documents in paragraphs 4, 5, 6, 7 and 8 possess that flavour. To permit discovery in those terms would not be moulding discovery to suit the facts of this particular case when one considers what is central to the determination of the proceeding. 42 The Court will order that the respondent file and serve an affidavit of documents in accordance with these reasons for judgment. If, as the proceeding develops, it transpires that the discovery order is inadequate, the applicant may request further discovery or specified discovery under O15 r8 of the rules of Court. The affidavit of documents will be filed and served on or before 5 April 2004. 43 The directions hearing will be adjourned to 10.15 am on 28 April 2004, at which time the balance of the applicant's amended motion concerning the applicant's request that the respondent provide, in effect, further and better contentions of fact and law, which was adjourned on 15 December 2003, will also be listed. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Counsel for the Applicant: Mr K Bell QC with Mr S McLeish

Solicitor for the Applicant: Maurice Blackburn Cashman

Counsel for the Respondent: Mr A Cavanough QC with Ms W Harris

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 15 December 2003

Completion of Written Submissions: 23 January 2004

Appendix A LIST OF DOCUMENTS

Documents considered or taken into account by the Respondent or any other person in providing advice or assistance to him in relation to the making of the decisions under review.
Documents recording, evidencing or relating to any direction, instruction, advice, assistance or information given to the Respondent by: (a) any person assisting or advising the Respondent or acting on his behalf; (b) Mr Reith or any other person acting on his behalf; (c) the Prime Minister or any other person acting on his behalf; (d) Mr Sharp or any other person acting on his behalf; (e) Patricks or any other person acting on its behalf; or (f) any other person or body (including Federal Cabinet) in relation to the making of the decisions under review.
Documents (of whatever date) recording, evidencing or relating to any policy, direction, guideline or protocol, applicable to the making of the decisions under review, issued by any person in relation to the exercise of the power in the Freedom of Information Act 1982 to issue certificates of the kind the subject of the decisions under review.
Documents recording, evidencing or relating to: (a) any inquiries or requests for information or advice made by or on behalf of the Respondent of any person in relation to the decisions under review; (b) any consultations carried out by or on behalf of the Respondent with any person in relation to the decisions under review; or (c) the results of any such inquiries, requests or consultations.
Documents (of whatever date) recording, evidencing or relating to any information, advice or assistance provided to the Respondent in relation to the preparation of the statement of reasons, including drafts of the whole or part of the statement of reasons.
Documents recording, evidencing or relating to the involvement or participation of the respondent in any of the following events: (a) meetings or discussions between the Commonwealth and various groups referred to by Mr Reith; (b) meeting on or about 21 March 1998 between the Respondent and representatives of Patricks; (c) meeting on or about 24 March 1998 between the Respondent and representatives of P & O Ports; (d) meeting on or about 27 March 1998 between Mr Corrigan, representatives of National Australia Bank, Colonial State Bank, the Bank of Western Australia, ANZ, Citibank, Societe Generale and Bankers Trust ("Patrick's banking syndicate") and others; (e) meeting on or about 31 March 1998 between the Respondent and representative of P & O Ports; (f) meeting on or about 2 April 1998 between Mr Corrigan and Patrick's banking syndicate; (g) meeting on or about 8 April 1998 between the Respondent and Mr Butterell and others; (h) telephone conference between the Respondent and Mr Butterell on or about 9 April 1998; (i) meeting on or about 29 April 1998 between the Respondent, Mr Reith, Mr Webster, Mr Corrigan, the Prime Minister and others; (j) meeting on or about 29 April 1998 between the Respondent, Mr Reith and Mr Houlihan; (k) meeting in or about the week of 27 April 1998 between the Respondent and the administrators ("the Administrators") of the four Patrick companies in administration, namely Patrick Stevedores No.1 Pty Ltd, Patrick Stevedores No.2 Pty Ltd, Patrick Stevedores No.3 Pty Ltd and National Stevedores Tasmania Pty Ltd; and (l) meeting on or about 5 May 19o98 between Mr Reith and the Administrators.
Documents recording, evidencing or relating to the involvement or participation of the Respondent in any of the following matters: (a) any Commonwealth contracts with ACIL for consultancies and any sub-contracts associated with the consultancies including a proposed sub-contract with TUCUMCARI Pty Ltd. (b) the engagement of the accountancy firm Price Waterhouse to advise the Commonwealth about the provision of financial assistance to facilitate redundancies for dismissed stevedoring employees; (c) the decision of the Commonwealth to create a fund for the payment of redundancy entitlements to facilitate redundancies for stevedoring employees, including any decisions made as to what condition or conditions would attach to the provision by the Commonwealth of such redundancy funding; (d) any agreement, arrangement or commitment by the Commonwealth to provide Patricks with funds whether by way of loan or otherwise for the purpose of paying redundancy entitlements to stevedoring employees of Patricks; (e) any undertakings or other confirmation given by Patricks and P & O Ports to introduce productivity measures in return for government backed loans; (f) correspondence and or other communication including meetings between the Commonwealth and the Administrators; and (g) any communication in April to June of 1998 between the Respondent and/or the Commonwealth and representatives of Patrick's banking syndicate relating to the administration of the Patrick companies in administration.
The following correspondence of the Respondent, and any correspondence or other documents received by the Respondent and/or the Commonwealth in response thereto: (a) correspondence of about 12 March 1998 to Patricks, P & O Ports and/or other stevedoring companies relating to the proposed redundancy fund; (b) correspondence of 23 April 1998 to the Administrators in relation to the redundancy fund; (c) correspondence of 11 May 1998 to the Administrators; and (d) correspondence of 20 May 1998 to the Administrators.

Administrative Decisions Judicial Review Act 1977(Cth)

Workplace Relations Act 1996(Cth)

REASONS FOR JUDGMENT 1 These reasons for judgment should be read together with the reasons for judgment in Tanner v Shergold [2000] FCA 422, (2000) 171 ALR 672, delivered on 6 April 2000 ("Tanner No 1"). Those reasons deal with the trial of separate questions concerning jurisdictional issues, which were in the main answered favourably to the applicant. The request for a trial of the separate questions was made during the course of argument in the hearing of a notice of motion filed by the applicant, in support of an application for discovery of certain documents ("the part-heard discovery motion"). That motion was filed on 6 October 1999. 2 The judgment in Tanner No 1 was subject to an application for leave to appeal. In Shergold v Tanner [2000] FCA 1420, (2000) 102 FCR 215 a Full Court granted leave to appeal but, by a 2 to 1 majority, dismissed the appeal on 10 October 2000. On 23 May 2002, the High Court dismissed an appeal from the judgment of the Full Court: see Shergold v Tanner [2002] FCA 19, (2002) 188 ALR 302. 3 The part-heard discovery motion was listed for hearing on 23 October 2002. At that hearing, counsel for the respondent sought that the Court order an exchange of pleadings. At that time only contentions of fact and law had been filed. The Court ordered that further contentions of fact and law be filed. The part-heard discovery motion was adjourned for further mention on 21 March 2003. Ultimately the matter was further adjourned by consent. On 29 August 2003, the Court ordered the applicant to file any amended discovery motion and any further affidavit material upon which he intended to rely in support of the motion. 4 The relevant affidavit envisaged by that order was sworn by Ms Gooley, a solicitor acting for the applicant, on 16 October 2003. At paragraph 11 of her affidavit, Ms Gooley said: "The Applicant seeks orders for discovery of documents described in the document now produced to me marked "AG-1" entitled "List of Specific Documents to be Discovered". That document is a refinement of the document described as JBB-5 …, prepared in the light of the revisions made to the parties' contentions of fact and law and the third amended application for review dated 11 February 2003. The documents sought by way of the amended motion are narrower in scope than the Applicant had previously sought, but are substantially within the scope of the former motion." 5 Also on 16 October 2003, the applicant filed an "amended notice of motion" in which it sought that the respondent "give discovery of the documents referred to in the List of Specific Documents to be Discovered, being exhibit "AG-1" to the affidavit of Anne Gooley sworn/affirmed (sic) 16th October 2003…". 6 The amended notice of motion sought ancillary orders which, inter alia, required the respondent to file and serve further contentions of fact and law. That aspect of the motion was adjourned on 15 December 2003 for future consideration after the Court's ruling on the discovery issue. 7 The latest amended version of the application in the substantive proceeding, filed on 11 February 2003, seeks judicial review of two decisions made by the respondent, namely:

that he was satisfied, in relation to documents to which s 36(1)(a) of the Freedom of Information Act 1982 (Cth) ("the FOI Act") applied, that the documents met the criteria provided in s 36(2) and that a certificate be signed pursuant to s 31(3);
that he was satisfied in relation to documents to which s 33A(2) of the FOI Act applied, that the documents met the criteria provided in s 33A(2) of the Act and that a certificate be signed pursuant to s 33A(2). 8 The essence of the substantive proceeding is whether the decisions referred to above were infected with judicially reviewable error. The actual documents, the subject of the conclusive certifications, cannot be made the subject of an order for discovery: see Tanner No 1 at [21]. Generally speaking there is no reason why, in accordance with ordinary principles relevant to discovery, documents that are relevant to any point in issue in the proceeding cannot be included in a party's affidavit of documents. Whether the documents so discovered are appropriate ones to be inspected is a different matter. Issues, such as a claim for privilege on the basis of public interest immunity, may arise at a later stage in the proceeding. 9 Counsel for the respondent submitted that it would be inappropriate to order discovery in this matter. They did not submit that the Court had no power to order discovery, but that the circumstances of the matter were such that it should exercise its discretion to refrain from doing so. A submission that the Court lacks the power to deal with discovery in a matter such as the present is doomed to fail: see Australian Securities Commission v Somerville (1994) 51 FCR 38 at 45 and Minister for Immigration and Multicultural Affairs v Wong [2002] FCAFC 327 at [23]. 10 The first basis for the alleged inappropriateness of discovery was that it would be repugnant to the FOI Act. In their written submissions, confirmed orally, counsel contended that: "Ultimately, the only (legitimate) point of a proceeding relating to a decision made under the FOI Act is to determine whether the requester is to be given access to the particular documents in question." 11 It was submitted by counsel for the respondent that the list of specific documents sought by the applicant includes the very documents the subject of the claims for exemption. 12 The respondent's counsel reminded the Court that: "there has never been a challenge of the present kind to a certificate and no applicant has ever sought or obtained discovery of documents for the purpose of considering or making any such challenge." Counsel further submitted that it would not be proper for discovery to be ordered to allow the applicant to do indirectly what he cannot do directly. The application for discovery was then described as one which sought orders "that would subvert the statutory scheme under the FOI Act." 13 Several responses can be made to those contentions made in reliance on the FOI Act. First, the "point of this proceeding" is not as alleged by the respondent. The point of the proceeding is to determine whether the respondent's decision to issue the conclusive certificates was infected with jurisdictional error. For the purposes of the discovery debate the applicant fastens on the jurisdictional errors, which are alleged in Ground C of the amended application for an order of review. That ground is covered by paragraph 29 of the amended application which states that: "The decisions were an improper exercise of the powers conferred by ss 36(3) and 33A(2) of the FOI Act respectively because the Respondent: (a) failed to take relevant considerations into account in the exercise of his powers; (b) took irrelevant considerations into account in the exercise of his powers; (c) exercised his powers for a purpose or purposes other than a purpose or purposes for which they were conferred; and (d) acted under dictation, in that he exercised his personal discretionary powers at the direction or behest of another person or persons, in each case as further articulated in the Revised Contentions of Fact and Law." 14 Second, the Court has been at pains to say that it will not permit the discovery process to be used to force the respondent to discover the documents the subject of the certificates: see [8] above. Indeed, no such discovery is requested by the applicant and the generality of his request should be read down accordingly. 15 Third, the fact that a challenge of the kind made in this case, and an order for discovery as here requested, is without precedent does not deny the validity of the challenge or the request. The High Court has already ruled that "the challenge" is within this Court's jurisdiction. The respondent does not deny the existence of the power to order discovery in this case but sought that the power should not be enlivened. 16 There are no considerations stemming from the nature of the proceeding, as one involving the FOI Act, that would prevent a discovery order. However, the Court, in framing such an order, should exercise caution to ensure that discovery is within appropriate bounds. 17 The respondent next submitted that there will be proceedings arising under the Administrative Decisions Judicial Review Act 1977 (Cth) ("the ADJR Act") in which it will not be appropriate to order discovery. Counsel for the respondent contended that so much was recognised by a Full Court in Treasurer of the Commonwealth v Canwest Global Communications Corp, Full Court of the Federal Court of Australia, 30 June 1997 (unreported), [1997] FCA 578. 18 In Canwest, the Full Court said at 1: "It is accepted, as nowadays it must be, that discovery orders are available in proceedings for judicial review…" Their Honours then went on to say: "At the same time, it is well recognized that very often there will be no need of discovery in proceedings of this nature, particularly where reasons have been given for the decision under challenge." 19 The later passage was emphasised by counsel for the respondent, who reminded the Court that the respondent, on 3 March 1999, provided a statement of reasons under s 13 of the ADJR Act for his decisions ("s 13 statement"), the subject of challenge by way of judicial review in this proceeding. 20 It is important to note, however, that the Full Court in Canwest did not say that discovery should not be ordered simply because a statement of reasons has been provided for the decision under review. 21 As was said in Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257, by a Full Court, at 265: "Courts may take into account in the exercise of discretion, on an application for discovery or inspection, whether a s 13 statement has been sought or provided, whether it is sufficient and whether it is appropriate to leave the parties to their rights under s 13, including the right to obtain further and better particulars under s 13(7). But to the extent that those matters are relevant they lie solely within the discretion of the court. There is no necessary relation between the two quite separate processes of statements of reasons under s 13 of the Judicial Review Act and the court's powers of discovery and inspection which are procedural machinery of courts to assist in the resolution of conflicts between litigants." (emphasis added)

Tanner v Shergold

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Judgment (11 paragraphs)

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Legislation Cited (4)

Cases Cited (10)

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