Allen v Corruption and Crime Commission of Western Australia
[2011] WASC 327
•30 NOVEMBER 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: ALLEN -v- CORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA [2011] WASC 327
CORAM: CORBOY J
HEARD: 20 MAY & 3 OCTOBER 2011
DELIVERED : 30 NOVEMBER 2011
FILE NO/S: CIV 1561 of 2011
MATTER :O 26A r 4 of the Rules of the Supreme Court
BETWEEN: MICHAEL ROBERT ALLEN
Plaintiff
AND
CORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA
Defendant
Catchwords:
Practice and procedure - Pre-action discovery - Whether the Corruption and Crime Commission can be required to give discovery - Whether documents sought contained 'official information' that could not be produced or disclosed under Corruption and Crime Commission Act 2003 (WA) - Whether listing discovered documents would necessarily disclose official information - Whether plaintiff may have a cause of action in negligence or for misfeasance in a public office
Legislation:
Corruption and Crime Commission Act 2003 (WA) s 152 and s 219
Rules of the Supreme Court 1971 (WA) O 26 and O 26A
Result:
Defendant ordered to give pre-action discovery but subject to the restrictions imposed by s152 Corruption and Crime Commission Act 2003 (WA)
Category: B
Representation:
Counsel:
Plaintiff: Mr S Penglis
Defendant: Mr J A Thomson
Solicitors:
Plaintiff: Freehills
Defendant: Principal Legal Officer, Corruption and Crime Commission
Case(s) referred to in judgment(s):
Applicant WAFV of 2002 v Refugee Review Tribunal [2003] FCA 16; (2003) 125 FCR 351
Cannane v J Cannane Pty Ltd (1992) 192 CLR 557
Central Exchange Ltd v Anaconda Nickel Ltd [2002] WASCA 94; (2002) 26 WAR 33
McCarthy v Dolpag Pty Ltd [2000] WASCA 106
Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500
Northern Territory of Australia v Mengel (1995) 185 CLR 307
Paxus Services Ltd v People Bank Pty Ltd [1990] FCA 500; (1990) 99 ALR 728
St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147
Waller v Waller [2009] WASCA 61
CORBOY J:
The application and the result
Mr Allen was at one time a senior officer in the Department of Planning and Infrastructure (DPI). He had some involvement during his employment with a project known as the 'Smiths Beach Development Project' (the Project).
The Corruption and Crime Commission (CCC) conducted an investigation into allegations of misconduct by public officers in connection with the Project. Mr Allen was examined as part of that investigation. The CCC then published a report (the Investigation Report) in which it expressed the opinion that an aspect of Mr Allen's involvement with the Project might have constituted a serious breach of the Public Sector Code of Ethics (the Initial Opinion). It recommended that the Director‑General of the DPI give consideration to disciplining Mr Allen.
Subsequently, the Parliamentary Inspector of the CCC provided a report to Parliament that criticised that part of the CCC's investigation that resulted in the Initial Opinion and the corresponding recommendation (the PI Report). The Parliamentary Inspector noted that the CCC had amended the Initial Opinion as a result of matters that he had raised in preparing his report. However, the opinion, as amended, still stated that Mr Allen might have committed a serious breach of the Code of Ethics.
The CCC responded to the PI Report with a further report to Parliament (the Administrative Matter Report), following which the Parliamentary Inspector initiated an inquiry into the CCC's investigation into the Project. That inquiry was undertaken by Mr Kenneth Martin QC (as his Honour then was) as Acting Parliamentary Inspector. The Acting Parliamentary Inspector found that there had been no misconduct by officers of the CCC in the course of the investigation. However, publication of parts of the Acting Parliamentary Inspector's report (the Martin Report) was suppressed as they contained operationally sensitive material.
The published extracts from the Martin Report disclosed that there had been seven matters into which the Acting Parliamentary Inspector had inquired. However, only three of those matters were publically identified. The publically identified matters did not apparently relate to the investigation into Mr Allen's conduct.
Mr Allen was subsequently advised that one of the Acting Parliamentary Inspector's terms of reference had concerned an aspect of the investigation into his conduct. He infers that the inquiry did not consider other aspects of the investigation. He claims that he has been unable to ascertain the basis upon which the Acting Parliamentary Inspector concluded that there had been no misconduct by the CCC and its officers in the course of their investigation into the Project because of the suppression of the Martin Report.
Mr Allen now contemplates commencing proceedings against the CCC for breach of a duty of care allegedly owed to him and/or misfeasance in a public office. He has applied under O 26A r 4 of the Rules of the Supreme Court 1971 (RSC) for pre‑action discovery by the CCC of documents relating to certain decisions that were said to have been made during its investigation into the Project. The CCC opposes the application, contending that the documents that are sought contain 'official information' within the meaning of s 152 of the Corruption and Crime Commission Act 2003 (CCC Act). It also contends that Mr Allen cannot satisfy the requirement under O 26A r 4 that he might have a cause of action because of the protection against personal liability provided to the CCC and its officers by s 219 CCC Act. Finally, the CCC argues that the orders sought by Mr Allen are oppressive because of the volume of material that it holds relating to its investigation into the Project and how the material is stored.
I have concluded that Mr Allen is entitled to orders under O 26A r 4 notwithstanding the provisions of the CCC Act. However, those orders must reflect the significant limitations on the production of documents and disclosure of information imposed by s 152. I will hear from the parties on the form of orders that would give effect to those limitations in the light of the matters that are referred to in the reasons that follow.
The background to Mr Allen's application
Mr Allen made an affidavit in support of his application. As will already be apparent, the affidavit and its attachments described a convoluted sequence of events that occurred in the course of and subsequent to the CCC's investigation into the Project. However, the sequence described by Mr Allen was not disputed by the CCC and it is only necessary to briefly summarise those events.
Mr Allen's participation in the CCC's investigation
Mr Allen was publicly examined by the CCC in connection with his role in the Project on 1 November and 5 December 2006. By letter dated 31 July 2007, Mr Allen raised with the Parliamentary Inspector several matters concerning the 'treatment' he had received when examined by the CCC (attachment 'MA1' to Mr Allen's affidavit).
The Investigation Report
The Investigation Report was tabled in Parliament on 5 October 2007. It contained the Initial Opinion:
Mr Allen's conduct in August 2006, in agreeing to appoint the departmental officer preferred by Mr (Brian) Burke to write the Department for Planning and Infrastructure … report on Smiths Beach in preference to other officers, involved a performance of duties that was not impartial. The conduct could constitute a serious breach of the Public Sector Code of Ethics …
The Investigation Report recommended that consideration should be given to Mr Allen being disciplined by the director‑general of the DPI for lack of integrity (Mr Allen's affidavit, pars 12 and 13).
The departmental officer referred to in the Investigation Report as having been preferred was Ms Barbara Pedersen. The other officer over whom Ms Pedersen was allegedly preferred was Ms Stephanie Clegg (Mr Allen's affidavit, par 14).
An investigation was subsequently undertaken by a delegate of the director-general of the DPI into whether there was any basis for disciplinary action against Mr Allen. She concluded that Mr Allen had 'no case to answer' (see par 24 of the PI Report).
The PI Report
The PI Report was tabled in Parliament on 8 March 2008 (the report was entitled, 'Report on the CCC's Investigation and Finding of "Misconduct" by Mr Michael Allen'; attachment 'MA4' to Mr Allen's affidavit). The Parliamentary Inspector stated in the report's executive summary that a careful and thorough investigation ought to have been undertaken by the CCC before it made and published a 'grave' finding of misconduct against Mr Allen. At the very least, it would have been expected that the CCC would have:
(a)interviewed Ms Pedersen to ascertain whether she had been appointed by Mr Allen to write a DPI report on the Project;
(b)interviewed Mr Singleton, the supervisor of Ms Pedersen and Ms Clegg, to ascertain whether there had been a DPI report written or to be written on the Project and if so, whether Mr Allen had the power to appoint Ms Pedersen to write such a report and whether he had appointed or sought to appoint Ms Pedersen in preference to Ms Clegg;
(c)interviewed Ms Clegg to ascertain whether Ms Pedersen had been preferred to her to write a report on the Project.
However, only Ms Pedersen was interviewed by an investigator from the CCC (Mr Mark Ingham). The Parliamentary Inspector considered that her evidence did not support but rather negated the finding of misconduct against Mr Allen.
The Parliamentary Inspector also identified another officer of the DPI, Ms Cherrie, who he considered ought to have been interviewed as part of the investigation. He concluded that 'no satisfactory explanation has been given by the CCC for the omission from the Report of the evidence of Ms Pedersen, nor for the failure to interview Ms Clegg, Mr Singleton and Ms Cherrie, all of whom would have given additional evidence inconsistent with the CCC's finding of misconduct' (par 9 of the PI Report).
The PI Report was lengthy (62 pages) and its contents disclosed that the Parliamentary Inspector had undertaken a close examination of the investigative process that culminated in the CCC forming the Initial Opinion and making its recommendation about Mr Allen's conduct. The report was very critical of that process. The investigation was described as being 'inadequate'; the Initial Opinion was said to be contrary to the evidence and aspects of the investigation and the CCC's Investigation Report were characterised as being unfair to Mr Allen (for example, the Parliamentary Inspector expressed the view that the CCC had failed to comply with s 86 CCC Act). The report contained recommendations that included that:
(a)the CCC should conduct an internal investigation into whether any CCC officer had been guilty of 'misconduct' (a nominated purpose of the investigation being to enable the Parliamentary Inspector to determine whether he should conduct an inquiry under s 197 CCC Act);
(b)the CCC should publicly acknowledge that it was in error in finding that Mr Allen was guilty of misconduct and withdraw its opinion.
The Parliamentary Investigator referred in his report to a request that he had made for the CCC to identify the evidence on which it had relied to form the Initial Opinion and to the CCC's response to that request. The CCC's response indicated that it had amended the Initial Opinion by replacing the reference to the appointment of a departmental officer preferred by Mr Burke to write a DPI report on the Project with a reference to Mr Allen's conduct in agreeing to 'arrange for Ms Pedersen's involvement in the DPI's assessment of the proposed development at Smiths Beach in preference to other officers' (Mr Allen's affidavit, pars 19 to 22). It should be noted that the Parliamentary Inspector still considered the CCC's opinion, as amended, was contrary to the evidence gathered in the investigation.
The Administrative Matter Report
It is not necessary to summarise the detail of the Administrative Matter Report. It is sufficient to note that the CCC rejected the Parliamentary Inspector's criticisms. It maintained that the opinion it had expressed concerning Mr Allen's conducted was well‑founded and correct (page 3). It otherwise explained the change in wording to the Initial Opinion, summarised the evidence on which it had formed the opinion and responded to some of the matters raised by the Parliamentary Inspector in the PI Report.
The Martin Report and the Joint Standing Committee
The inquiry undertaken by the Acting Parliamentary Inspector was initiated by the Parliamentary Inspector under s 197 CCC Act in June 2008 and after the Administrative Matter Report was tabled in Parliament. A Joint Standing Committee was established by Parliament in November 2008 to enquire into the functions, powers and responsibility of the CCC and the Parliamentary Inspector. The Committee received an abridged version of the Martin Report in January 2009. A report by the Committee was tabled in Parliament in March 2009. The Committee's report included a synopsis of parts of the Martin Report.
The synopsis only identified three of the seven terms of reference given to the Acting Parliamentary Inspector. The identified terms did not concern the CCC's investigation into Mr Allen's conduct. However, Mr Allen attached to his affidavit a letter from the Chairman of the Joint Standing Committee that advised that one of the other terms of reference considered by the Acting Parliamentary Inspector was why information obtained from the interview of Ms Pedersen had not been referred to in the Investigation Report (attachment 'MA11').
The letter from the Chairman of the Joint Parliamentary Committee identified Mr Ingham as the officer of the CCC who had interviewed Ms Pedersen (as did the PI Report and the Administrative Matter Report). The letter further stated that the Acting Parliamentary Inspector had made no finding of misconduct against Mr Ingham or any other officer of the CCC concerning the interview of Ms Pedersen. Mr Allen stated in his affidavit that he inferred from that advice that the matters referred to the Acting Parliamentary Inspector had not included the question of why Ms Clegg, Mr Singleton and Ms Cherrie were not interviewed by the CCC in the course of its investigation into his conduct. The documents to which Mr Allen seeks access by his application under O 26A r 4 RSC are relevant to that question.
The order sought by Mr Allen
By his originating summons, Mr Allen sought orders that the CCC:
(a)make a list of the documents described in the schedule to the summons that are, or had been in the CCC's possession, custody or power relating to the Investigation Report;
(b)subject to any proper objection, make available for inspection the documents described in that list.
The schedule to the originating summons specified the documents sought as emails, memoranda, records of meeting or other documents:
(a)relating to the decision to interview Ms Pedersen;
(b)referring to the CCC's interview with Ms Pedersen and made between 7 May and 5 October 2007;
(c)referring to whether or not to interview Ms Clegg, Mr Singleton and/or Ms Cherrie.
The CCC's evidence in the application
The CCC relied on affidavits sworn by Jessica Morgana Wilby and Anthony Andrew Warwick in support of its opposition to the orders sought by Mr Allen.
Ms Wilby is a senior lawyer with the CCC. She stated in her affidavit that:
(a)Investigation running sheets compiled by CCC officers were maintained in an electronic form. Similarly, investigative and administrative records, including emails, were held in an electronic form as part of an information management system operated by the CCC.
(b)She had been informed by the senior intelligence analyst involved in the CCC's investigation into the Project that he had undertaken an electronic search of the investigation running sheets and the information management system to identify whether the CCC held documents that might fall within the categories identified by Mr Allen. Word searches had been performed using the names 'Pedersen', 'Clegg', 'Singleton' and 'Cherrie' and variations of those names.
(c)A search had also been undertaken of documents held by the Parliamentary Inspector.
(d)The searches that had been undertaken had identified a limited number of documents that fell within the categories of documents nominated by Mr Allen.
(e)Considerable time would be required to search across all emails sent and received by the CCC during the period specified by Mr Allen in the originating summons given the system by which emails were archived and the duration of the relevant period.
(f)The CCC held a copy of the Martin Report and the terms of reference for that report. The remaining documents identified from the searches that had been undertaken by the CCC fell into one of the following categories:
(i)document(s) created by CCC officers as a record of steps taken in the investigation into the Project;
(ii)document(s) created by CCC officers recording information provided to them by third parties in carrying out the investigation into the Project;
(iii)document(s) provided to the CCC after it had completed its investigation into the Project by a third party who was an Australian legal practitioner; and
(iv)document(s) created by the Commissioner after the CCC had completed its investigation and sent them to a third party.
(g)She believed that all of the documents that had been identified and any documents that might be further identified from searches undertaken of the CCC's email system were 'official information' for the purpose of s 152 of the CCC Act.
Mr Warwick is the CCC's manager of executive projects. He was aware of searches undertaken in March 2008 of emails passing between certain officers of the CCC and which might contain a reference to Ms Pedersen. However, neither party referred in their submissions to Mr Warwick's evidence concerning the outcome of those searches.
The reasons why Mr Allen seeks the documents
A plaintiff must satisfy several requirements on an application for pre-action discovery under O 26 r 4(1) RSC. The CCC made no submissions on those requirements except on the question of whether Mr Allen might have a cause of action against the CCC or any of its officers. It is, however, relevant to note what Mr Allen stated about why he sought the documents identified in the schedule to his originating motion from the CCC.
In a letter dated 25 February 2011 to then Acting Commissioners of the CCC, Mr Allen's solicitors stated that an inference arguably arose from various matters referred to in the PI Report and from the outcome of the inquiry conducted by the delegate of the director-general of the DPI that what was done in the course of the investigation into Mr Allen's conduct 'was not, in fact, done in good faith' (attachment 'MA14' to Mr Allen's affidavit). The letter continued:
That inference will either be supported, or rebutted, by what in fact happened with respect to the matters identified by the Parliamentary Inspector.
The questions which therefore arise are what, if anything, was done internally with respect to the evidence provided to the Commission by Ms Pedersen and why weren't Ms Clegg, Mr Singleton and Ms Cherrie interviewed.
The letter concluded with a request that Mr Allen's solicitors be permitted to inspect the document that are now the subject of this application to enable him to decide whether to commence proceedings against the CCC.
One of the then Acting Commissioners of the CCC responded to that request by letter dated 18 March 2011 ('MA15' of Mr Allen's affidavit). The Acting Commissioner's letter stated that the CCC considered that the 'suggested cause of action has no sound basis' and that it was not reasonably arguable that it had not acted in good faith. The letter also stated that all of the material sought to be inspected was official information.
The PI Report provides further context about why Mr Allen seeks discovery of documents before deciding whether to proceed with an action against the CCC. The Parliamentary Investigator expressed in the report his opinion that the Investigation Report did not provide adequate reasons for the finding made about Mr Allen's conduct nor did the Investigation Report properly identify the evidence on which the CCC had relied to make the finding. The Parliamentary Inspector recounted the detail of an interview that he had conducted with Mr Ingham in which it had been disclosed that Mr Ingham had not made any recommendation concerning Mr Allen's conduct that accorded with the CCC's finding. Mr Ingham had not been able to tell the Parliamentary Inspector 'how the proposition [that Mr Allen's conduct could have constituted a serious breach of the Public Sector Code of Ethics] had evolved, or by whom' (PI Report, par 76). The PI Report further stated that Mr Ingham had advised the Parliamentary Inspector that he had considered that it had been unnecessary to interview Mr Singleton, Ms Clegg and Ms Cherrie in investigating possible misconduct, although he would have done so if he had been investigating a possible criminal offence requiring proof beyond reasonable doubt (par 78). It should be noted that the Administrative Matter Report suggested a different reason for why Mr Ingham decided not to interview Mr Singleton, Ms Clegg and Ms Cherrie (see at page 29 of the report, page 167 of Mr Allen's affidavit).
It is to be inferred that those matters explain the questions said in the letter from Mr Allen's solicitors of 25 February 2011 to arise from the inference of want of good faith.
The principles relevant to the application
The Chief Justice observed in Waller v Waller [2009] WASCA 61 that:
Order 26A r 4 … applies if a person 'may have a cause of action against a person'. The nature of the jurisdictional threshold which an applicant is required to cross under that rule is illuminated by its evident purpose, which is to enable a prospective litigant to obtain discovery of documents that may assist in making a decision as to whether to commence proceedings. It would entirely defeat the purpose of the rule to require an applicant to demonstrate the present existence of a cause of action as a condition to the exercise of the court's jurisdiction [2].
His Honour then cited from the judgment of Burchett J in Paxus Services Ltd v People Bank Pty Ltd [1990] FCA 500; (1990) 99 ALR 728 to the effect that the rules conferring power on a court to order pre‑action discovery should be given a beneficial interpretation; the 'proper brake on any excesses and in its use is the discretion of the court' (Paxus Services ALR (733); see also St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147 [26](a) (Hely J)). The Chief Justice concluded that it would be wrong in principle 'to approach the rule with an undue focus or emphasis upon the demonstration of the prospective cause of action' [4].
Nevertheless, the court must form an opinion on whether there is sufficient evidence to establish that the applicant may have a cause of action against a potential party. The evidence must demonstrate an 'objective foundation' for the conclusion that the plaintiff may have a cause of action; it must contain more than a mere assertion and evidence suggesting only a suspicion of the existence of a cause of action will be insufficient: Waller [75] (Le Miere AJA).
The court, of course, retains a discretion over whether to order pre‑action discovery once the requirements of O 26 r 4 have been satisfied. In McCarthy v Dolpag Pty Ltd [2000] WASCA 106, Anderson and Scott JJ observed that orders for pre‑action discovery should not be made as a matter of course but only when reasonably necessary to achieve the proper administration of justice [13]; see also, Hatfield v TCN Channel Nine Pty Ltd[2010] NSWCA 69; 77 NSWLR 506 [136] (Young JA). In Central Exchange Ltd v Anaconda Nickel Ltd [2002] WASCA 94; (2002) 26 WAR 33, Steytler J identified various factors that he considered were relevant to determining whether pre‑action discovery was reasonably necessary to achieve the proper administration of justice [83]. Those factors included the magnitude of the task of identifying and producing for inspection the documents sought and the possible significance of the information contained within those documents.
Whether it appears that Mr Allen has a cause of action
The CCC did not contend that Mr Allen could not maintain an action in negligence or for misfeasance in a public office against it or any of its officers as a matter of law. Rather, it argued that Mr Allen was unable to establish that he might have a cause of action because of the protection conferred by s 219(2) CCC Act. That section provides that an action in tort does not lie against the CCC or an official for anything done, in good faith, in the performance or purported performance of a function under the Act or any other written law (the term 'official' is defined to include an officer of the CCC). Section 219(4) provides that a reference to the doing of anything includes a reference to an omission to do something. The CCC submitted that the plaintiff could not demonstrate a lack of good faith on the part of the CCC or any of its officers having regard to the findings that had been made by the Acting Parliamentary Inspector in the Martin Report.
Mr Allen referred to s 219 CCC Act as a reason why he had insufficient information to enable a decision to be made about whether to commence proceedings. However, he contended that he may have a cause of action despite the findings made by the Acting Parliamentary Inspector as the basis upon which those findings were made was unknown; the findings might reflect a different standard of proof to that which would be applied in a civil action and the findings (that there had been no 'misconduct' by Mr Ingham or others in the course of the investigation into the Project) may not 'directly equate to a view that, in civil proceedings, the [CCC] would be able to establish (the onus being upon it) that what occurred was done "in good faith"' (plaintiff's outline of submissions, par 17).
The findings of the Acting Parliamentary Inspector undoubtedly suggest that the protection afforded to the CCC and its officers by s 219 represents a significant obstacle to Mr Allen succeeding in any claim in tort (and he would be required, in any event, to establish bad faith as an element of a cause of action for misfeasance in a public office: see Northern Territory of Australia v Mengel (1995) 185 CLR 307). However, the circumstances of this matter are somewhat extraordinary (with great respect to those who have been involved). Plainly, the Parliamentary Inspector formed a strong view that there were aspects of the CCC's investigation into Mr Allen's conduct that were troubling and had produced a flawed finding. The CCC took a different view ‑ it regarded its opinion of Mr Allen's conduct, as amended, as 'well founded and correct'. It can be inferred that the Parliamentary Inspector did not necessarily accept that view from the fact that he subsequently convened an inquiry under s 197 CCC Act.
Understandably, the CCC contended that the finding of the Acting Parliamentary Inspector disposed of the matter, at least in dispelling any possibility that the CCC or any of its officers had not acted in good faith. However, the submission was necessarily made as an assertion given that publication of most of the Martin Report has been suppressed.
The CCC did not attempt in its submissions to define the meaning of 'good faith' for the purpose of s 219. Mr Allen only touched on the matter in his written submissions, reference being made to the observations of Kirby J in Cannane v J Cannane Pty Ltd (1998) 192 CLR 557 [101] and French J in Applicant WAFV of 2002 v Refugee Review Tribunal [2003] FCA 16; (2003) 125 FCR 351 [52]. Their Honours' comments emphasised that the meaning to be attributed to the expression 'good faith' will depend on the context in which it is used, the issue generally being whether good faith is be determined objectively or subjectively or by a combination of objective and subjective considerations.
I do not propose to comment on the interpretation of the expression as it appears in s 219 CCC Act in view of the approach taken by the parties, other than to note two matters. First, in my view the notion of good faith when used in that section must import an objective element. Second, in WAFV French J observed that 'good faith requires more than the absence of bad faith. It requires a conscientious approach to the exercise of power' [52]. Whether the expression 'good faith' when used in s 219 embraces a requirement that the CCC and its officers adopt a conscientious approach to the exercise of power, what that might mean in the context of the powers conferred on the CCC and its officers and whether alleged deficiencies in an investigative process can be characterised as a lack of good faith in the sense meant by French J in WAFV would require further consideration. However, his Honour's comments suggest that good faith may require more than the absence of dishonesty or malice or personal interest and that a process involving the exercise of a statutory power may be characterised as lacking good faith notwithstanding that it was not infected by improper motives.
In my view, the matters referred to by the Parliamentary Inspector in the PI Report provide an objective foundation for establishing that Mr Allen may have a cause of action against the CCC or an officer of the CCC that satisfies the requirements of O 26A r 4 notwithstanding the findings that were made by the Acting Parliamentary Inspector. I have formed that view having regard to:
(a)The approach taken to O 26A r 4 RSC by the Court of Appeal in Waller.
(b)The approach taken by the CCC to the issue. The CCC’s reliance on the findings made by the Acting Parliamentary Inspector entailed, by inference, acceptance of two propositions: first, that misconduct could be equated with a lack of good faith and second, that the question of whether Mr Allen may have a cause of action for the purpose of his application can be assessed by reference to the findings made by a Parliamentary Inspector following an inquiry into the relevant circumstances.
(c)The contents of the PI Report. The Parliamentary Inspector was concerned with, among other things, whether there had been misconduct. The views expressed in the PI Report suggest that he considered that there might have been misconduct by officers of the CCC. The Acting Parliamentary Inspector concluded that there had not been misconduct within his terms of reference. However, it is not possible to say that the Acting Parliamentary Inspector's findings necessarily demolish any objective foundation for concluding that Mr Allen may have causes of action in tort. The terms of reference given to the Acting Parliamentary Inspector, the extent of his inquiry and the basis for his conclusions are not completely known. Consequently, it is not possible to assess his findings in the context of the concerns expressed by the Parliamentary Inspector and to come to a reasoned conclusion on whether Mr Allen may have the contemplated causes of action.
(d)The meaning of the term 'misconduct' as defined by s 4 CCC Act. I assume that references to misconduct in the PI Report and the Martin Report were to conduct defined by that section. Aspects of the statutory definition of misconduct might not correspond with the meaning of 'good faith' for the purpose of s 219. However, other aspects of the definition would appear to encompass what would commonly be understood as a lack of good faith.
The findings made by the Acting Parliamentary Inspector are, of course, entitled to be accorded weight. The difficulty is the court is not in a position to determine how much weight. That difficulty is compounded by the nature of the inquiry to be undertaken by the court to determine Mr Allen's application; it is only whether it appears that he has a prospective cause of action. In the circumstances, the views expressed by the Parliamentary Inspector in the PI Report provide a logical foundation for concluding that Mr Allen may have causes of action notwithstanding the protection afforded by s 219 CCC Act when those views are considered in the context of the matters identified above. It is clear that the Parliamentary Inspector's conclusions reflected a careful and detailed consideration of the circumstances surrounding the CCC's investigation into Mr Allen's conduct (at least, in so far as he was able to ascertain from his inquiries).
Section 152 CCC Act
The parties approach
Section 152 CCC Act states:
(1)In this section ‑
Commission lawyer means ‑
(a)a legal practitioner appointed to assist the Commission; and
(b)a person who assists, or performs services for or on behalf of a legal practitioner appointed to assist the Commission in the performance of the legal practitioner’s duties assisting the Commission;
court includes a tribunal, authority or person having power to require the production of documents or the answering of questions;
official information, in relation to a relevant person, means information acquired by the person by reason of, or in the course of, the performance of the person’s functions under this Act;
produce includes permit access to;
relevant person means a person who is or was ‑
(a)an officer of the Commission; or
(b)a Commission lawyer.
(2)Subject to subsections (3), (4) and (6) a relevant person must not, either directly or indirectly ‑
(a)make a record of any official information; or
(b)disclose any official information.
Penalty: Imprisonment for 3 years and a fine of $60 000.
(3)Despite subsection (2), a relevant person may make a record of official information ‑
(a)under or for the purposes of this Act;
(b)otherwise in connection with the performance of the person’s functions under this Act.
(4)Despite subsection (2), official information may be disclosed by a relevant person if it is disclosed ‑
(a)under or for the purposes of this Act;
(b)for the purposes of a prosecution or disciplinary action instituted as a result of an investigation conducted by the Commission or the Parliamentary Inspector under this Act or any other prosecutions or disciplinary action in relation to misconduct;
(c)when the Commission has certified that disclosure is necessary in the public interest;
(d)to either House of Parliament or to the Standing Committee;
(e)to any prescribed authority or person; or
(f)otherwise in connection with the performance of the person’s functions under this Act.
(5)A relevant person is not authorised to disclose operational information under subsection (4)(d) or (e) unless the Commission has certified under subsection (4)(c) that disclosure is necessary in the public interest.
(6)Despite subsection (2), a relevant person may disclose the fact that an allegation has been received or initiated by the Commission or the details of an allegation.
(7)A relevant person cannot be required to produce or disclose any official information in or to any court except for the purposes of a prosecution or disciplinary action instituted as a result of an investigation conducted by the Commission or the Parliamentary Inspector under this Act.
(8)This section also applies to the Commission as if references to official information were references to all information acquired by the Commission by reason of, or in the course of, the performance of the Commission’s functions under this Act.
It is relevant to the reasons that follow to note that the CCC is constituted as a body corporate by s 8(2) CCC Act. Section 8(3) expressly provides that proceedings may be taken by or against the CCC in its corporate name. Section 9(2) permits the Commissioner to do any act that may or must be done under the CCC Act by the CCC. Consequently, the Commissioner may give the certificate to which s 152(5) refers. Section 152(8), however, plainly refers to the CCC as a corporate entity.
The CCC contended that the combined effect of s 152(7) and s 152(8) was that it could not be required to produce or disclose official information to any court for the purpose of, in this instance, pre‑action discovery. That interpretation was said to be confirmed by s 154 of the Act which provides that s 152(2) applies despite any law, written or otherwise, under which a person may be required to produce or disclose any matter.
Mr Allen did not deny that the effect of s 152 was as stated by the CCC and it is clear that the court cannot require the CCC to disclose or produce official information. However, Mr Allen disputed that it was open for the CCC to merely assert, as Ms Wilby had done in her affidavit, that information of the kind that he sought might be official information for the purpose of that section. The CCC's objection to his application was, in his view, premature. The procedure that ought to be adopted having regard to the provisions of O 26A and s 152 was that the CCC should be required to provide a list of any documents that it held within the categories of documents identified in the schedule to the originating summons; a claim that a listed document contained official information should be made in answer to a request for the document to be produced (the orders sought by the originating summons accommodated that step by requiring documents to be produced 'subject to any proper objection') and argument should be heard on any disputed claim and a ruling made on whether the document concerned should be produced.
The gist of Mr Allen’s contention was that the CCC's approach 'brought forward the proper construction of s 152' in circumstances where 'the simple identification of communications, indicating from whom they were sent and when they were sent, and the relevant subject matter (to the extent that it does not comprise "official information") may be sufficient to assist the plaintiff to make a decision with respect to whether or not to commence proceedings' (plaintiff's submissions in reply, pars 7 and 8).
Mr Allen's approach assumed that the CCC would not disclose official information by providing a list of the documents that it held within the categories nominated in the originating summons; that is, that disclosure would only occur, if at all, when he sought to inspect a discovered document. However, the CCC did not concede that it could provide a list of discovered documents without disclosing official information and Mr Allen acknowledged in further submissions filed at the request of the court that official information might be disclosed by a description of the subject matter of a document. He accepted that the CCC could not be required to describe a document in a discovery list in such a way as to disclose official information.
'Official information'
The approach taken to the drafting of s 152 is illustrated by s 152(2), s 152(3) and s 152(4): s 152(2) provides for an absolute prohibition on recording or disclosing official information that would prevent CCC officers from even sharing information between themselves except for the exemptions contained in s 152(3)(a) and s 152(4)(a). That reflects a clear statutory purpose of strictly controlling the disclosure of official information. The need for such controls is obvious from the nature of the CCC's functions. Consistent with that objective, the concept of 'official information' is extremely wide.
Nevertheless, there are limits to the width of the definition of 'official information'. The concept, as defined by s 152(1), refers to:
(a)'information';
(b)information 'acquired' by a 'relevant person';
(c)information acquired by the relevant person 'by reason of, or in the course of, the performance of [the relevant person's] functions under [the] Act'.
The concept of official information focuses on the acquisition of information. Official information is not defined by reference to the source of the information; it is not confined to information acquired from a source that is external to the CCC. Consequently, a CCC officer may acquire official information from what s/he is told by another CCC officer or from reading a document held by the CCC or created within the CCC by another officer.
Further, the word 'acquired' when used in the definition of official information (and in s 152(8)) may carry more than one meaning. The Macquarie Dictionary (5th ed, 2009) defines 'acquire' to mean, '1. to come into possession of; get as one's own … 2. to gain for oneself through one's actions or efforts'. Consequently, a relevant person may acquire information when they receive a document from a third party; that is, the mere receipt of the document may constitute the acquisition of information. Obviously, a relevant person will also acquire information on reading or by enquiring about a document. Acquisition in that sense involves a mental process ‑ something was learnt from or about the document.
Official information is also not defined by the kind of information that has been acquired (other than that it was acquired by reason of or in the course of the performance of a function under the CCC Act). At least three kinds of information that can be acquired from or about a document may be relevant to the application of s 152:
(a)information acquired from the contents of the document about the subject matter of the document;
(b)information acquired from the document of a subsidiary kind (for example, the date and author of the document, whether it was received from an external source and if so, from whom and whether it was distributed and if so, to whom);
(c)information about the document (for example, the fact that the document exists and was held by a particular person).
Information of any kind may constitute official information depending on the circumstances in which it was acquired.
It is also relevant to note that official information is defined by reference to a particular relevant person; it is not information that has been acquired by some CCC officer or lawyer but rather, it is information 'in relation to a relevant person' that has been acquired by that person. The prohibitions in s 152 then apply to disclosure or production by that person.
A final and related point about the concept of official information and the application of s 152 concerns the effect of s 152(8) CCC Act. It was common ground that s 152(8) extended the operation of s 152 to the CCC as though it was a 'relevant person' notwithstanding that the sub-section does not refer to relevant persons. Consequently, the restriction in s 152(7) on the disclosure or production of official information to the court applies to the CCC.
The effect of s 152(7)
The approach urged by Mr Allen must be considered in the context of s 152(7). The effect of that section is that the court cannot require a document to be produced that the CCC or a relevant person claims is official information for the purpose of testing that claim by, for example, inspecting the document (the court will have contravened the section if it required production of the document and it then concluded that the document was or contained official information). Consequently, the court must decide that a document does not contain official information prior to requiring the document to be produced for any purpose. Again, the court cannot require the CCC or a relevant person to disclose information about a document that is claimed to be official information in arriving at that decision.
Those limitations do not mean that a court is necessarily bound by a claim by the CCC or a relevant person that information is official information; there may be ways in which the court can determine that information is not official information without requiring disclosure or production of the information for the purpose of making the determination. However, s 152(7) obviously impacts significantly on the ability of the court to go behind such a claim and it requires the court to proceed with circumspection. The section will not only affect the procedure and evidence by which a court may determine any dispute over whether information is official information but it will also govern how the court may frame any order that it might make on an application for pre‑action disclosure by the CCC or discovery in proceedings involving the CCC.
The listing of documents and the acquisition of information
The width of the definition of ‘official information’ raises the possibility that the very act of producing a list of documents held by the CCC would involve the disclosure of official information regardless of whether the documents that were itemised contained official information. A CCC officer would acquire information in the course of ascertaining whether the CCC held documents within the categories nominated by Mr Allen and in preparing a list of any documents that were located. Most obviously, the officer would acquire information about and from the contents of the documents. The production of a list of documents held by the CCC would not necessarily involve the disclosure of that information. However, the officer would also acquire information about the documents - for example, the fact that the documents existed and were held by the CCC, the kinds of documents that were held (letter, memorandum, email et cetera) and the author and date of the document. The list of documents sought by Mr Allen must necessarily disclose at least some of that information in order to sufficiently describe the documents discovered.
However, the CCC accepted that producing a list of documents that it held did not necessarily involve disclosing official information. Indeed, it went so far as to characterise any suggestion that it could not prepare and provide a list of discovered documents without disclosing official information as 'nonsensical' as it would mean that the CCC would be exempt from giving discovery in any civil proceedings to which it was a party (see at ts 33). On the CCC’s interpretation (with which Mr Allen agreed), the expression 'functions under this Act' appearing in the definition of official information was a reference to the functions of the CCC prescribed in div 2, pt 2 of the CCC Act. The giving of pre-action discovery or the conduct of civil proceedings in which discovery would inevitably be required were not functions of the kind specified in div 2, pt 2. Consequently, any information acquired through the preparation of a list of discovered documents was not official information.
I accept the parties' submissions on this point. The statutory purpose evident in s 152 is achieved by confining the expression 'functions under this Act' in the definition of official information (and in s 152(8)) to the functions specified in div 2, pt 2 CCC Act.
The possibility of 'partial disclosure' of official information
The CCC, however, contended that a requirement that it describe the documents that it held in relation to the investigation into Mr Allen's conduct in a way that complied with O 26 r 4 would necessarily involve 'partial disclosure' of information about the investigation (CCC’s summary response to questions of the court, par 10). It was said that partial disclosure could occur in two ways:
(a)A list would identify that the CCC held documents within the categories identified by Mr Allen in his application so that 'a list provided in response to these categories necessarily discloses information about the content of the documents on that list'.
(b)The description of particular documents was itself information that was acquired by the CCC by reason of or in the course of the performance of a function of the CCC for the purpose of s 152 (to inquire into Mr Allen's conduct). So, 'for example, the author and the recipient of a document will disclose who participated in and made decisions about the Allen investigation and, in particular, about the decision to interview Ms Pedersen and others' (CCC summary of response to questions of the court, par 10). Since the CCC was performing an investigative function within div 2, pt 2 CCC Act by inquiring into the Project, information of that kind was official information as it was information acquired by the CCC in the course of the investigation.
Putting aside for the moment the question of whether official information would be disclosed in the circumstances outlined by the CCC, the substantive answer to that contention lies, in my view, in the form of any order that may be made requiring the CCC to give discovery. It is clear that the terms of such an order must reflect the restriction in s 152(7). The CCC cannot be required to disclose official information in any list that it is directed to provide. Consequently, the form of any order that is made must be to the effect that the CCC is only obliged to list documents to the extent that the list does not disclose official information, either through the description given to a document or by its inclusion in the list or in any other way.
Discovery and s 152
A question then arises about whether the CCC can comply with such an order; is there a conflict between the constraints on disclosure imposed by s 152 CCC Act and the rules relating to discovery?
Order 26A r 6(2) RSC provides that O 26 applies to any discovery that is ordered to be given under O 26A as if the order had been made under O 26 r 7. O 26 r 7 confers power on the court to order discovery. Order 26 r 7(4) provides that where a party is ordered to give discovery the party shall, subject to the order, make and serve a list of documents that are or have been in the party's possession, custody or power. Order 26 r 4(1) provides that the list of documents made in compliance with an order under r 7 must be in Form No 17 and must describe each document sufficiently to enable it to be identified. Ordinarily, that requirement is satisfied by providing details such as the date of the document, the creator of the document, the party to whom it was addressed and often in the case of memoranda and file notes, a brief indication of the document's subject matter. However, no particular form of description is specified by the Rules; what is required is a description that is sufficient to facilitate inspection and requests and orders for production of a party's discovered documents. Consequently, the description will vary according to the nature of the document that is discovered.
Order 26 r 4(2) further provides that any claim for privilege from production must be made in the list of documents with a sufficient statement of the grounds of the privilege claimed. A document in respect of which privilege is claimed must still be described sufficiently to enable the document to be identified.
In my view, O 26 r 7(3) and r 7(4) provide the court with sufficient power to adapt any order that may be required to accommodate the constraints imposed by s 152 where discovery by the CCC is sought. That is, the court can make an order under those rules that would require the CCC to only provide a list of documents to the extent that the list does not disclose official information. Further, the reference to 'privileged from production' in O 26 r 4(2) is wide enough to encompass any reason why the party giving discovery is excused from producing a document for inspection. Consequently, there is no difficulty in the CCC incorporating into a list of documents prepared according to Form No 17 a claim that it is not obliged to produce a document as it is official information.
It may be possible to sufficiently describe a document so that it can be identified without disclosing any official information that the document may contain. Nevertheless, any order that is made will need to accommodate the possibility that a sufficient description for the purpose of O 26 r 4 could involve the disclosure of official information. The form of the order must ensure that the CCC is not placed in a position where it can only comply with the order by disclosing official information in some form. How effect is to be given to an order that reflects the constraints imposed by s 152 is then a matter that must necessarily rest with the CCC for the reasons that have been explained. Only the CCC will know what information relevant to the subject matter of the order is official information. It is possible, for example, that the CCC could respond to an appropriately worded order by not providing a list of documents on the ground that to itemise any document in a list would require official information to be disclosed – either through the inclusion of documents in the list or by a sufficient description of the documents.
Finding that an order for pre-action discovery can be made
The possibility that in a particular matter the CCC might not be able to include any or only relatively few documents in a list of discovered documents without disclosing official information is a factor that would, in my view, go to the exercise of the court's discretion to order discovery. That is how I consider that the CCC's contention concerning partial disclosure should be regarded. Similarly, Ms Wilby's belief that all of the documents that may be held by the CCC within the categories nominated by Mr Allen are or are likely to be official information should be considered in the context of the court’s discretion to make an order under O 26A r 4. That, I think, must be so once it is accepted that the preparation of a list of documents will not, in itself, result in the disclosure of official information so that the CCC can be required to give discovery, including pre-action discovery. The court might not, however, order pre-action discovery if appeared likely that the applicant would not receive much information that would assist in deciding whether to commence proceedings against the CCC because of the limitations on disclosure and production imposed by s 152, particularly if the task of identifying the documents sought and determining whether they were or contained official information was onerous because of the volume of material involved. That approach is consistent with the observations of Steytler J in Central Exchange v Anaconda Nickel referred to earlier in the reasons.
In my view, the matters considered so far establish that an order requiring the CCC to give pre-action discovery to Mr Allen could be made ‑ it appears that Mr Allen may have a cause of action against the CCC; the reason for him seeking the documents nominated in the originating summons has not been put in issue; the CCC has acknowledged that its holds documents of the kind sought by Mr Allen; the CCC has also accepted that it may be required to give discovery, including pre-action discovery and it has been held that it may be possible to frame an order for discovery with which the CCC can comply but which does not require official information to be disclosed or produced. The remaining question is whether the court should exercise its discretion to make an order under O 26A r 4. As has been explained, that involves considering the utility of making an order in the light of Ms Wilby’s evidence. It is also necessary to consider whether it would be oppressive to require the CCC to comply with an order of the kind sought by Mr Allen.
Documents recording steps taken in the investigation into the Project
The documents sought by Mr Allen broadly concern decisions that were made in the course of the investigation into the Project to interview or not interview witnesses. As previously noted, Ms Wilby identified four categories of documents that were held by the CCC and which related to those decisions. The first of those categories was described as 'document(s) created by CCC officers as a record of steps taken in the investigation into the Project'. Clearly, a decision to interview or not interview a particular person would be a step taken in the investigation into the Project. Consequently, it may be inferred that the first category identified by Ms Wilby could include documents recording or evidencing a decision of that kind. Would the listing and/or production of such documents involve the disclosure of official information?
Mr Allen’s answer to that question correctly, in my view, identified that a document that merely recorded a decision by CCC officer could not, in itself, contain official information even if the decision was made in the course of the officer performing a function under the CCC Act. That is because the document would not record information that was acquired by the officer. A document created by a CCC officer (or, for example, an entry in a document such as an officer's investigation running sheet) that recorded, 'I have decided not to interview X' does not record any information acquired by the CCC officer who made the decision and the record. Conversely, a document made by a CCC officer that recorded, 'I have decided not to interview X because Y told me that X knew nothing about the Project' clearly contains information that has been acquired by the officer and is accordingly, official information.
Official information may comprise information acquired by a CCC officer from another officer or by reading a document created by another officer. That possibility creates what might be regarded as an anomaly. The CCC officer who made a decision to, for example, interview a witness would not disclose official information by revealing that the decision had been made (as the officer would not disclose any information that had been acquired). However, another CCC officer who, in the course of performing a function under the CCC Act, was informed of the decision or learnt of it by reading a document would acquire information that was official information. That officer could not disclose information about the decision. The CCC contended that in the same way, it acquired information from a document recording a decision even if the document did not contain official information.
I do not propose to express a final view on that contention in these reasons. It was not fully argued and I think that it is only necessary to express a preliminary view for the purpose of disposing of the application for the present.
In my view, the contention arguably overlooks the fact that the CCC is a corporate entity. As counsel for Mr Allen briefly indicated, there may be a good argument that the CCC as a corporate entity cannot be said to independently acquire information in either of the senses of the word 'acquire' identified earlier in the reasons when an officer records a decision that s/he has made in a document (at least where the officer was acting within the scope of their authority in making the decision). The CCC does not independently acquire information about the decision from the document as it made the decision through its authorised officer; that is, it does not subsequently learn about the decision from a document recording what occurred as it already knew of the decision through the knowledge of its officer. Similarly, the CCC does not acquire information by obtaining possession of a document containing information since the document was always its document. Consequently, the CCC stands in the same position as the officer who made the decision and the record.
This issue may involve questions of agency, the circumstances in which knowledge may be attributed to a corporation and construction of the CCC Act (refer, Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500). Those matters were only touched on in argument. It may be necessary, in particular, to closely consider the provisions of the CCC Act in relation to documents created within the CCC since, on one view of the law relating to the attribution of knowledge held by a corporation's agents, the CCC would not acquire information from any document created by a CCC officer where that document recorded information that was already known to the officer (see, RP Austin and IM Ramsey, Ford's Principles of Corporations Law (14th ed, 2010) [16.210]).
However, I consider that it is sufficiently arguable that the CCC does not acquire information from a document that records a decision that has been made by a CCC officer in the course of an investigation to interview or not interview a person to conclude that an order requiring the CCC to give pre-action discovery will not be inevitably inutile. The question of whether such a document is official information can be more fully argued and determined if it subsequently arises (the question might be moot as the CCC may not possess any document of that kind).
This issue also bears on the CCC's submission concerning partial disclosure of official information through the listing of documents. Information concerning decisions made in the course of a CCC investigation may be official information 'in relation to' a relevant person if that person acquired information about the decision. However, it is arguably not information acquired by the CCC as it made the decision through its officer. The fact that the question of whether information is official information can depend on the identity of the relevant person may not have been an intended consequence of the drafting of the definition of official information. However, in my view, it reflects the concepts that have been employed to identify official information - the acquisition of information and the linking of the acquisition and disclosure of information with a particular relevant person.
Nevertheless, as I have endeavoured to explain, the CCC's concerns regarding partial disclosure fall away once it is accepted that the form of any discovery order made by the court must recognise the constraints imposed by s 152. It is also relevant to note that the CCC has already disclosed through Ms Wilby's affidavit that it holds documents within the categories nominated in the schedule to the originating summons. Further, a considerable amount of information concerning the investigation into Mr Allen's conduct has been publicly disclosed through the PI Report and the Administrative Matter Report. That information includes the identity of the CCC investigator who interviewed Ms Pedersen. The fact that much information regarding the investigation has already been released is relevant to the exercise of court's discretion in this matter.
I do not propose to express a view on whether documents falling within the other categories of documents identified by Ms Wilby as being held by the CCC are official information other than to observe that the meaning that has been given to word 'acquired' earlier in the reasons suggests that most documents received by the CCC from a third party will be official information. I also note that Mr Allen concedes that the documents within the third category are official information.
The CCC also contended that compliance with an order for pre-action discovery would be oppressive having regard to how it stores electronic information such as emails. According to Ms Wilby, the process of locating archived information, restoring the data, loading electronic files and conducting searches could 'potentially' take several hours for each month during which the investigation into the Project was conducted (a period of approximately 60 months; Ms Wilby's affidavit, pars 15 - 17).
I accept that approximately 60 working days in retrieving and locating information to ascertain what documents the CCC might hold within the categories nominated by Mr Allen is disproportionate to the purpose for which the order is sought. However, I consider that it ought to be possible to frame orders that achieve an appropriate balance between Mr Allen's purpose in seeking pre-action discovery and the burden of compliance having regard to the following matters:
(a)Ms Wilby's affidavit does not disclose how her estimate of the time required for compliance might be broken down between tasks - locating archived material, restoring data et cetera. However, it may be that the work required can be significantly reduced by agreeing a limited set of key word searches and other search criteria.
(b)Ms Wilby states that documents have already been located using obvious word searches. It may be that a list prepared from those searches (subject, of course, to s 152) is sufficient for Mr Allen's purposes. Alternatively, a preliminary list might ensure that subsequent searches (if appropriate) were focussed in a way that minimised the magnitude of the task.
(c)It may be that there is a set of documents that has already been identified from the preparation of the PI Report and the Administrative Matter Report that could also assist in confining the task of searching. In particular, it may be possible to further limit the relevant time period for the documents to be discovered so that it is not necessary to search across the whole time during which the investigation into the Project was conducted.
I propose to hear further from the parties on how any order for discovery can be framed so as to ensure that an appropriate balance is maintained between achieving the purpose of the order and the burden of compliance. I will also hear from the parties on the form of orders to be made generally. I acknowledge that it may be necessary to manage the process of giving discovery given the novelty and difficulty of the issues that arise. Mr Allen's application may require more than one hearing and it may be necessary to find ways that ensure that justice is done between the parties by enabling issues that are genuinely contested to be raised and determined within the constraints imposed by s 152. However, I am satisfied that it is in the interests of justice that pre‑action discovery be given within the confines of those constraints.
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