Avx16 v Minister for Immigration

[2020] FCCA 945

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVX16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 945

Catchwords:
PRACTICE AND PROCEDURE – Application for Discovery – whether documents sought are immune from production – whether discovery should be granted – documents found to be immune from discovery – discovery in any event not appropriate – application dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), ss.19D, 60
Federal Circuit Court of Australia Act 1999 (Cth), s.45
Federal Circuit Court Rules 2001 (Cth), r.14.06
Migration Act 1958 (Cth), ss.414, 424A, 425

Cases cited:

Abrahams v Qantas Airways Limited (No 2) (2007) 210 FLR 314
East Melbourne Group Inc v Minister for Planning [2008] VSCA 217

Herijanto v Refugee Review Tribunal (No 2) [2000] HCA 21

Herijanto v Refugee Review Tribunal [2000] HCA 16

Mathews v Health Insurance Commission (No 1) [2005] FCA 1061
MZZZW v Minister for Immigration & Border Protection [2015] FCAFC 133
O’Shane v Harbour Radio Pty Ltd [2013] NSWCA 315

Applicant: AVX16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 755 of 2016

Judgment of: Judge C. E. Kirton QC

Hearing date: 12 February 2019

Date of Last Submission: 12 February 2019

Delivered at: Melbourne

Delivered on: 29 April 2020

REPRESENTATION

Counsel for the Applicant: Mr McBeth

Solicitors for the Applicant: Clothier Anderson & Associates

Counsel for the First Respondent: Mr Chaile

Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The Applicant’s application in a case dated 1 February 2019 be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $2,000.

4. The matter be listed for final hearing in the Federal Circuit Court of Australia on a date to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 755 of 2016

AVX16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an Application in a case filed on 1 February 2019, the Applicant seeks discovery (Discovery Application). Specifically, the Applicant seeks:

   1.Each of the Respondents make particular discovery of the notes made by Tribunal Member Wendy Boddison that were before Tribunal Member Sophia Panagliotidis in the applicant’s matter before the Tribunal, as referred to in the transcript of the hearing on 10 September 2015 before Tribunal Member Sophia Panagliotidis, page 2, line 19, annexed as annexure CJF-2 to the affidavit of Catherine Jane Farrell filed on 9 November 2018 in this proceeding (‘the Notes’).

   2.Each of the Respondents file an affidavit as to:

   a.the matters specified in r.14.06(a) of the Federal Circuit Court Rules (Rules) in relation to the Notes; and

   b.the searches and enquiries conducted by the deponent to locate the Notes.

2. The First Respondent (Minister) opposes the Discovery Application.

3. These reasons will determine whether the Application in a Case is to be allowed.

Background

1. The substantive application before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), dated 21 March 2016 (Tribunal’s Decision), to not grant the Applicant a protection visa (Visa).

2. The Applicant was not represented when he filed his application in this Court. On 14 September 2018, the Applicant obtained legal representation. An amended application was filed on 9 November 2018 (Amended Application). Relevant to the issue the subject of these reasons is ground 4 (Ground 4):

   The Tribunal failed to afford the applicant procedural fairness and/or failed to provide a meaningful hearing within the meaning of s 425 of the Migration Act.

3. What is of some significance in these proceedings is that during the course of the application before the Tribunal, the Tribunal was required to be reconstituted. That is, the Applicant attended a hearing with a member of the Tribunal on 21 May 2015. Circumstances arose whereby that Tribunal member was unable to complete the review. A new Tribunal member then took conduct of the review and had the Applicant attend another hearing before that member on 10 September 2015.

4. An affidavit of the Applicant’s solicitor was also filed on 9 November 2018. Annexed to that affidavit were transcripts of the two hearings the Applicant attended before the Tribunal on 21 May 2015 and 10 September 2015. The particular passage of the transcript relevant to the issue here is the following[1]:

   There were some changes and the Member who did the original hearing is no longer here. So I am very aware that putting you through this twice is very difficult. I have read her notes, made by the previous Member, I have listened to most of the recording but there were I think some gaps that I need to fill in and I need to be able to speak to you directly to get that information because on what I had alone I didn’t feel I could make a decision because I have some concerns […]

   [1] Affidavit of Catherine Farrell, affirmed 9.11.16, Annexure “CJF-2”, T2:17-23.

5. The Applicant’s solicitor wrote to the Minister’s solicitor seeking a copy of the “notes” referred to in the transcript in the paragraph above. The Minister’s solicitor indicated that there were no “notes” on the Tribunal’s file[2].

   [2] Affidavit of Catherine Farrell, affirmed 1.2.19, at [3]-[4] and Annexures “CJF-3” and “CJF-4”.

6. On 20 November 2018, the Applicant’s solicitors caused a subpoena to be issued to the Tribunal (Subpoena) for the following documents:

   […] the notes made by the member originally constituting the Tribunal, Ms Wendy Boddison, in relation to the matter of [the Applicant] (case number 1315745), and transmitted to the member subsequently constituting the Tribunal in that matter, Ms Sophia Panagiotidis, as referred to at page 2, line 19 of the attached transcript of the Tribunal hearing.

7. The Applicant’s solicitor engaged in correspondence with a legal officer of the Tribunal. The legal officer indicated that the Tribunal could not locate any document matching the description provided. The Applicant withdrew the Subpoena[3].

   [3] Ibid at [6]-[8].

8. The Applicant then filed the Discovery Application seeking the same documents (Notes) as the Subpoena sought or, in the alternative, the documents sought in order 2 of the Discovery Application.

9. The Court heard from the parties in relation to the Discovery Application on 12 February 2019. The Minister filed written submissions outlining the basis of the opposition to the Discovery Application[4]. Both parties addressed the Court orally on their respective positions.

   [4] Outline of Submissions, filed 12.2.19.

10. The Minister’s opposition to the Discovery Application is formed on  two bases:

    a)The Notes are immune from discovery; or

    b)Disclosure and/or discovery should not be ordered, given that the Notes were not the notes of the Tribunal member whom made the decision the subject of the judicial review application.

11. Both parties made detailed oral submissions addressing whether the Notes were amenable to discovery and disclosure and why discovery should or should not be ordered if the Notes were not immune from production.

Consideration

Can the Notes be disclosed or discovered?

1. The first question for the Court is whether the Notes are immune from discovery or disclosure.

2. This issue must be considered in the statutory context of s.60(1) of the Administrative Appeals Tribunal 1975 (Cth) (AAT Act):

   (1)  A member has, in the performance of his or her duties as a member, the same protection and immunity as a Justice of the High Court.

3. The Minister referred the Court to Herijanto v Refugee Review Tribunal [2000] HCA 16 (Herijanto) and Herijanto v Refugee Review Tribunal (No 2) [2000] HCA 21 (Herijanto No.2). In these cases the High Court was considering an application for interrogatories and an application for further discovery respectively.

4. In Herijanto at [16], Justice Gaudron stated:

   There is no difficulty in saying that, in an appropriate case, judges may be compelled to disclose the record on which they have acted.  In the context of the judicial process, “the record” bears a clear meaning.  The same is not necessarily true in the context of administrative decisions.  Thus, it is preferable to identify what is within the immunity, rather than that which is outside it.  And in my view, the immunity is immunity from disclosing any aspect of the decision-making process.  That is what is required to ensure freedom of thought and independence of judgment.  And that approach is entirely consistent with what was said in Hennessy.

   (Footnotes omitted)

5. In Herijanto No.2, Justice Gaudron expanded as follows:

   9. So far as the plaintiffs seek discovery to ascertain whether the individual members concerned with their review applications gained access to the Pt B documents stored in computer databases, they seek to achieve indirectly what they cannot achieve directly by means of interrogatories. The protection afforded to individual members of the tribunal by s 435(1) of the Act would be illusory if, although they could not be compelled to disclose their decision-making processes, those processes could be revealed by analysis of computer records.

   10. In my view, the protection and privilege conferred by s 435(1) of the Act extends not merely to disclosure by the individual member concerned, but the revelation, by whatever means, of any aspect of his or her decision-making process. This seems to have been the basis for the decision in Zanatta v McCleary.  In that case the evidence of counsel was not admissible to prove an out of court statement by a judge as to his decision-making process.  And it may also be the rationale for the decision of the Privy Council in Ramlochan v The Queen in which it was held that a defendant in criminal proceedings was not entitled to production of the notes of the judge who presided at his previous trial.

   11. Whether or not the privilege conferred by s 435(1) of the Act extends to the revelation, by whatever means, of the decision-making processes of individual members of the Tribunal, it would not be right, in my view, to order discovery to enable the plaintiffs to do indirectly what they cannot do directly. Accordingly, in each case, the application for further discovery is dismissed with costs.

   (Footnotes omitted)

6. The Applicant placed emphasis on the opening passage of Herijanto at [16]. Specifically, the Applicant said that he is not seeking the Notes in order to interrogate the reasoning process or the thought process of the Tribunal. Rather, he is seeking the Notes as they form a part of the content, or “the record”, upon which the Tribunal member relied in reaching a decision. The Applicant submits that there is a distinction and this is recognised by Gaudron J in the passage at [16].

7. The Applicant also submitted that it is not the case that they are seeking the notes of the actual decision-maker, the Notes are those of the Tribunal member who was not the ultimate decision-maker. The Tribunal was reconstituted, and the Applicant seeks the Notes of the previous Tribunal member (not the member who decided the review). The Applicant accepts it would be improper to seek the notes of the Tribunal member who made the decision. Here, the Applicant emphasises that as the Notes are not of the actual decision-maker, Herijanto is somewhat distinguishable. The Notes are simply part of the materials that were before the Tribunal that, ordinarily, would be included in the Court Book.

8. What was sought in Herijanto and Herijanto No.2 was information about whether the Tribunal had looked at particular documents. In Herijanto, the applicant sought that information by way of interrogatories and was denied. In Herijanto No.2, the applicant sought that information by way of discovery. Specifically, the applicant sought access to the Tribunal’s computer records so an expert could analyse those records to determine whether the particular documents had been accessed by the Tribunal. Again this was denied.

9. In Herijanto No.2, it was made clear that one cannot seek indirectly what it cannot obtain directly. That is, what was sought by way of interrogatories (and denied in Herijanto) could not then be provided by way of discovery (which was what was sought in Herijanto No.2).

10. In Mathews v Health Insurance Commission (No 1) [2005] FCA 1061 at [14], Justice Edmonds stated:

    […] having regard to the terms of sub-s 106F(1) of the Act which provides:

    “A Committee member has, in the performance of his or her duties, the same protection and immunity as a Justice of the High Court.”

    and the reasons for judgment of Gaudron J in Herijanto v Refugee Review Tribunal (No.2); Muin v Refugee Review Tribunal (No.2); Lie v Refugee Review Tribunal (No.2) (2000) 170 ALR 575 in considering an application for further discovery of various documents relating to the computer system of the Refugee Review Tribunal, and its computer records, in the context of the provisions of sub-s 435(1) of the Migration Act 1955 (Cth) which, save for the substitution of the words “Administrative Appeals Tribunal” for “High Court” is in the same terms as sub-s 106F(1) of the Act, the applicant’s application for further discovery in terms of access to the Committee’s file must be rejected […]

11. In that case, further discovery of the documents in the file of the Professional Services Review Committee (a committee of three members) who had prepared a report were found to be immune from discovery. It seems in that case that some of the documents from the file were provided in an affidavit (much like documents in migration matters may be provided in a Court Book), however the applicant sought further access to the file. After finding that the documents should not be discovered on other bases, Justice Edmonds appears to have further found that the Committee’s file was also not discoverable generally on the basis of the immunity identified in Herijanto.

12. The parties also referred the Court to MZZZW v Minister for Immigration & Border Protection [2015] FCAFC 133 (MZZZW). Again, the Applicant did not state that he disagreed with what was stated in MZZZW. Rather, the Applicant repeated that all that was sought in this matter was the objective document that was before the ultimate decision-maker not the reasoning processes. The Applicant further submitted that, if it is the case that the Notes form part of the “reasoning process”, that in and of itself is jurisdictional error (citing MZZZW).

13. The Minister referred to O’Shane v Harbour Radio Pty Ltd [2013] NSWCA 315 at [183] (“O’Shane”):

    It is not necessary to identify the precise scope of a judicial officer’s immunity for present purposes. As explained in Scanlon, it does not extend to protect an officer from the consequences of misconduct which would justify removal from office: at [57]. It does, however, protect an officer from compulsory disclosure, by answering interrogatories or producing documents, where such a course would tend to disclose the manner in which a decision has been reached which is not apparent from, or is inconsistent with, published reasons: Herijanto v Refugee Review Tribunal [2000] HCA 16; (2000) 74 ALJR 698 at [15]-[16] per Gaudron J. In Herijanto, the plaintiffs sought to interrogate members of the Refugee Review Tribunal, who had the same immunity and protection as judges of the High Court, as to whether they had had regard to certain documents, which were required to be forwarded to them by the Secretary of the Department, but had simply been made available on a computer database. Interrogatories seeking disclosure of aspects of the decision-making process were set aside. A further application to search the records of the computer database, to determine whether Tribunal members had in fact had access to relevant documents, was also rejected: Herijanto v Refugee Review Tribunal [No 2] [2000] HCA 21; 74 ALJR 703.

14. The Minister submitted that, having regard to the reasons of the Tribunal, the Applicant should be able to identify already whether something was not put to him. He does not need the Notes to do that. As noted in O’Shane above, the principle of Herijanto renders immune from disclosure any aspect of the decision-making or reasoning process.  The Applicant is confined to the Tribunal’s decision in this case.

15. The Minister also advanced a policy argument to the effect that if it is found that the Notes are not immune from compulsory disclosure, then notes and other materials made by decision-makers (including judicial officers) in the course of a hearing would also be open to discovery merely because one is able to characterise those notes as forming part of the material before another decision-maker.

16. The Court accepts that the basis on which the Applicant seeks to distinguish Herijanto and Herijanto No.2 arises. Herijanto and Herijanto No.2 clearly concerned the decision-making and reasoning process of the individual member. Here, the Notes belonged to a different Tribunal member. The Court also accepts the Applicant’s submission that if it is the case that the Notes form part of the “reasoning process” of the deciding Tribunal member, then there would be some merit in the argument that the Tribunal may have erred in the sense identified in MZZZW.

17. However, the Court is not prepared to limit the principle of Herijanto and Herijanto No.2 as the Applicant submits – namely, that a multi-member decision-maker panel is not immune from having Notes discovered or giving evidence as to their reasoning process.

18. While the Tribunal was reconstituted, the Tribunal was, at all times, conducting a single review under s.414 of the Migration Act 1958 (Cth) (Act). Both members comprised the “Tribunal” for the purposes of the review. Both members were the subject of s.60(1) of the AAT Act. The Notes of the previous Tribunal member were part of the preliminary reasoning process of that member. When the deciding Tribunal member took over the matter, they “continued” the proceeding: s.19D of the AAT Act. In the Court’s view, the Notes are therefore immune from disclosure and continued to be immune from disclosure notwithstanding that the Tribunal member who authored the Notes was not the deciding member.

19. The Court also agrees with the Minister’s policy submission. If the Applicant’s construction is allowed, it could mean that the immunity of multi-member decision-makers from discovery differs from the individual. It could, for example, mean that if a member of the Full Court who heard a case and was later required to recuse themselves or could not continue on the matter, their Notes could be open to discovery. This could allow, if the matter was to be reheard, a party to seek discovery of the Notes for the purpose of identifying preliminary views on the way the case was run or witness credibility. That a Tribunal member is unable to complete a review does not waive the immunity to which their notes or preliminary reasoning processes are provided under s.60(1) of the AAT Act.

20. This does not prevent the Applicant from succeeding in his argument regarding procedural fairness. The Court accepts that the content of the Notes may have influenced the deciding Tribunal member in a particular way and that using the Notes in an adverse manner could have required the Tribunal to put this to the Applicant.

21. However, as pointed out in O’Shane, the course the Applicant is seeking is to discover a document which would tend to disclose the manner in which a decision has been reached which is not apparent from the Tribunal’s decision. Notably, the Tribunal makes no reference to the Notes in the decision itself and it makes no remarks on the demeanour (which is what the Applicant refers to in his submissions on this ground) or otherwise of the Applicant at the first hearing. This will be expanded upon below.

1. The Notes are, accordingly, immune from discovery.

Should discovery and/or disclosure be ordered?

1. Lest the Court be wrong above, and the Notes are not immune from discovery and disclosure, the Court has addressed whether it would be inclined to grant the Applicant the orders he seeks in the Discovery Application.

2. Section 45 of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act) reads:

   Interrogatories and discovery

   (1) Interrogatories and discovery are not allowed in relation to proceedings in the Federal Circuit Court of Australia unless the Federal Circuit Court of Australia or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.

   (2) In deciding whether to make a declaration under subsection (1), the Federal Circuit Court of Australia or a Judge must have regard to:

   (a) whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and

   (b) such other matters (if any) as the Federal Circuit Court of Australia or the Judge considers relevant.

3. The Applicant referred the Court to Abrahams v Qantas Airways Limited (No 2) (2007) 210 FLR 314 at [25] (Abrahams) where the following matters were listed as being potentially “relevant” for the purposes of s.45(2)(b)[5]:

   [5] Federal Circuit Court of Australia Act 1999 (Cth).

   (a)the relevance of any documents sought to be discovered;

   (b)the volume of documents sought to be discovered;

   (c) whether there is a court book containing relevant documents, and the extent to which relevant documents are included in the court book;

   (d) whether discovery would narrow the issues;

   (e) whether both parties seek discovery;

   (f) whether there is consent to discovery;

   (g) whether discovery is “of benefit” in the litigation; and

   (h) the effect of discovery on litigants, especially, vulnerable litigants.

4. Rule 14.06 of the Federal Circuit Court Rules 2001 (Cth) (Rules) provides:

   Order for particular disclosure

   If, at any stage of a proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed, that some document or class of document relating to a matter in question in the proceeding may be, or may have been, in the possession, custody or control of a party, the Court may order the party:

   (a)  to file an affidavit stating:

   (i)     whether the document, or a document of that class, is or has been in the possession, custody or control of the party; and

   (ii)  if it has been but is not then in the possession, custody or control of the party, when the party parted with it and what has become of it; and

   (b)  to serve the affidavit on another party.

5. The Applicant’s submissions in relation to discovery were that where a subsequent Tribunal member is making use of observations made by a previous Tribunal member, then s.424A of the Act needs to be complied with. Without the Notes, the Applicant says he cannot know whether s.424A has been complied with. Hence, the Notes are highly relevant and probative. They are a single document which ought to have been included in the Court Book but were not which is why the Discovery Application was necessary. The Applicant relied on his vulnerability as an Applicant for a protection visa and noted that there is a great disparity between himself and the Minister who, in effect, holds all of the information.

6. The Minister submitted that it is well established that in a judicial review proceeding one is confined to and limited to the reasons for the decision. It is not open to the Applicant to seek to identify an error by reference to some extrinsic material that might or might not have been put to the Applicant and that might or might not have influenced the deciding Tribunal member. Further, there is no utility in ordering discovery because the Applicant cannot make use of the discovery process in order to circumvent, or to make more difficult, the orthodox task on judicial review which is to consider the Tribunal’s reasons.

7. The Minister referred the Court to O’Shane and MZZZW as support for the proposition that the Tribunal’s decision confines the scope of discovery. That is, discovery should not be allowed to identify inconsistences in information which is not apparent from the Tribunal’s decision. The Minister further referred to East Melbourne Group Inc v Minister for Planning [2008] VSCA 217 at [308]:

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

8. Here, the Applicant seeks the Notes to support Ground 4 of his Amended Application. Namely, that he was denied procedural fairness in the sense that the Tribunal failed to comply with ss.424A or 425 of the Act. Hence the “question” (as per r.14.06 of the Rules) and the “relevance” (as per Abrahams) is to be determined by reference to what is pleaded in Ground 4.

9. The Court is not satisfied that it is in the interests of the administration of justice for discovery of the Notes to be allowed nor for an order under r.14.06 of the Rules to be made.

10. In relation to the order for discovery, the Court observes the following when considering s.45(2)(a) of the FCCA Act:

    a)The way in which the Applicant has conducted the case, including issuing the Subpoena, withdrawing the Subpoena and then making the Discovery Application, in circumstances where the submissions filed by the Applicant[6] did not indicate that there was an intention to do so, rather reserved a right to be heard on the significance of the Notes, has held up the “expeditious conduct” of the proceeding.

    b)The evidence before the Court indicates that the Tribunal has not been able to locate the Notes. The two Tribunal members who undertook the Applicant’s review are no longer employed at the Tribunal. There is no policy or practice of how notes like those in this matter are to be kept or recorded. To undertake a process whereby the Minister or Tribunal is required to discover documents for which there is a very slim chance on the evidence that they can be located would, in the Court’s view, further hinder the expeditious conduct of the hearing. If the respondents were to return to the Court saying they could not locate the Notes, the Applicant would be in the same position that he is in now and the Court would be unable to do anything more.

    c)In terms of fairness, the Applicant is not at a disadvantage if the Notes are not produced. The relevance of the Notes to the proceedings does not indicate that in the absence of their production, the Applicant cannot succeed or run his argument (the Applicant has in fact done so in his submissions). It is open to the Court to infer what was in the Notes. However, even with Notes, the Court would still be required to draw an inference of whether the Tribunal considered or relied on the Notes and this must be done by having regard to the Tribunal Decision which, as noted, makes no reference to the Notes or demeanour.

    [6] Outline of Submissions, dated 30.1.19.

11. In terms of s.45(2)(b) of the FCCA Act, the Court notes:

    a)It accepts the Minister’s submission that were it the case that the Applicant was seeking to establish a breach of s.424A of the Act, it would be apparent from the Tribunal’s reasons that such a breach would occur. The Tribunal’s reasons indicate the matters that it relied upon in making the findings that it did. If those matters were not put to the Applicant, then it should be readily identifiable from the Tribunal’s Decision. It is also the case that the Tribunal is not required to put an applicant on notice of any doubts or inconsistencies in an applicant’s evidence.

    b)The basis of the Tribunal’s decision was the concerns that the Tribunal had with the credibility of the Applicant. As the Tribunal noted in its decision, these same concerns were held by the Delegate. Hence, there was no need to put the Applicant on notice of the adverse view that either Tribunal member may have taken of the Applicant’s credibility.

    c)The Applicant’s submissions in relation to Ground 4 address the ground to the same extent that the Applicant would be able to, if the Notes were provided. The Notes would, on the Applicant’s submissions, provide some reference to the demeanour of the Applicant when giving his evidence. Accepting that is the case for present purposes, it would still not provide any enlightenment on whether the Notes formed any part of the reasoning process of the deciding Tribunal member. That would require evidence from the decision-maker which is, without doubt, immune from being compelled, otherwise the Court is restricted to the Tribunal’s Decision.

    d)It is true that the Applicant seeks only one document which, in his submission, ought to have been included in the Court Book. The fact that the Notes are of no significant volume weighs in favour of discovery being ordered. The fact that the document was not included in the Court Book is not of significance to the Court. The Court Book did not contain the transcript of the Tribunal hearing, which is where the sole (and notably minor) reference to the Notes is contained. It can hardly be said to reflect poorly on the Minister for not including the Notes in these circumstances and further noting that the Notes (in the Tribunal’s case) have been unable to be located in any event.

    e)Should the Notes be produced (or even located), it may be that Ground 4 would fall away entirely (thus limiting the issues in dispute). While this has some weight, given the duration of the matter thus far and the fact that both parties have already provided submissions on Ground 4 (though without the Notes) the Court does not consider this of significant weight.

    f)There is no doubt that the Applicant is in a vulnerable position as an asylum seeker. The outcome of the Amended Application will undoubtedly have a great effect on him. However, the mere fact that the Notes are not to be discovered, does not exploit the Applicant’s vulnerability. Rather, it is simply the application of the FCCA Act and the Rules to the present circumstances.

12. Having considered and noted each of the matters referred to above, the Court is not satisfied that it is appropriate in the interests of the administration of justice to order discovery of the Notes. It cannot be said that the provision of the Notes will assist the fair and expeditious conduct of the matter. Further, the relevance of the Notes to the issues is not of such significance in the Court’s view that the Court could not resolve the issue properly without the Notes.

13. In relation to order 2 of the Discovery Application (specifically r.14.06 of the Rules), the Court notes that the Applicant engaged in correspondence with the Tribunal and was advised that the physical and electronic files for the Applicant’s matter did not contain any documents matching the description of the Notes[7]. During the course of those exchanges, the Applicant advised that, if necessary, an application compelling an affidavit that addresses the matters in r.14.06(a) of the Rules would be sought. After further exchanges, the Applicant withdrew the subpoena. At the hearing of the Discovery Application, Counsel for Applicant indicated that order 2 would only be sought against the Minister, and not the Tribunal.

    [7] Affidavit of Catherine Farrell, affirmed 1.2.19 at [3]-[8].

14. In the Court’s view, the Applicant’s conscious choice to withdraw the subpoena and then to indicate that he did not seek to enforce r.14.06 of the Rules against the Tribunal indicates that the Applicant has accepted that the Tribunal has made the necessary inquiries and cannot locate the Notes. Having taken this course, the Applicant has abandoned any potential access to information that they may have been provided by the Tribunal had it been so compelled in circumstances where the Tribunal was the better placed respondent to provide what the Applicant seeks.

15. The Court does not understand how having the Minister put on an affidavit the matters identified in r.14.06 of the Rules will be of any assistance to it. The Notes were produced when the application was before the Tribunal. If any of the respondents had the Notes, it would be the Tribunal. Order 2, accordingly, lacks any purpose if enforced against the Minister.

Conclusion

1. The Discovery Application is to be dismissed.

2. At the hearing, the Minister sought cost in the sum of $2,000 in the event the Discovery Application was dismissed. It is noted that this sum is less than what would be awarded in accordance with pt.1 of sch.1, items 3 and 13(b) of the Rules. In those circumstances there will be a further order that the Applicant pay the First Respondent’s costs fixed in the sum of $2,000.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC

Associate: 

Date: 29 April 2020