Banyule City Council v The Minister for Planning & Ors (Discovery Ruling)
[2020] VSC 382
•29 June 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION COMPENSATION AND PLANNING LIST
S ECI 2020 00810
| BANYULE CITY COUNCIL (and others according to the Schedule attached) | Plaintiffs |
| V | |
| THE MINISTER FOR PLANNING (and others according to the Schedule attached) | Defendants |
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JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 29 June 2020 |
CASE MAY BE CITED AS: | Banyule City Council v The Minister for Planning & Ors (Discovery Ruling) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 382 |
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PRACTICE AND PROCEDURE – Discovery – Objection to discovery on the ground of relevance – Discovery in judicial review proceedings – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.01.1(1).
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HIS HONOUR:
Introduction
On 17 February 2020, the plaintiffs filed an originating motion seeking judicial review of the approval by the Minister for Planning (‘Minister’) of an amendment to seven planning schemes and of the declarations, assessments, reports, and inquiry that preceded it. The amendment concerns the North East Link project (‘project’) and the public works necessary to undertake the project (‘works’).
Pleadings have now been exchanged between the parties, but an issue has arisen as to the scope of discovery to be provided by the State of Victoria (‘State’).
The Court is asked to rule on the discovery issue on the basis of written submissions made by the parties.
The works
The works are described in a declaration made by the Minister on 2 February 2018 in these terms:
·Western Ring Road to Lower Plenty Road – from the M80 to Greensborough Bypass to the northern tunnel portal, this section would include a mixture of above, below and at surface road sections, with new road interchanges at M80, Grimshaw Street and Lower Plenty Road.
·Tunnels – from the northern tunnel portal located just north of Lower Plenty Road to south of Manningham Road, twin tunnels would travel under residential areas, Banyule Flats and the Yarra River. Near each tunnel supporting infrastructure would be required, including ventilation structures, substations and associated infrastructure. This section would include a new interchange at Manningham Road.
·Bridge to Eastern Freeway – this section would include open cut and bored or mined tunnel with the southern portal located south of the Veneto Club. Further south, surface road and viaduct structures would connect to the Eastern Freeway via a new interchange.
·Easter Freeway upgrades – from around Hoddle Street in the west through to Springvale Road in the east, modifications to the Eastern Freeway would include widening to accommodate future traffic volumes, provision of new dedicated bus lanes for rapid bus services and associated works; and
·Relevant ancillary temporary works to support the construction project.
The declaration also states:
·The project is a large-scale infrastructure construction project, with construction effects to span several years and some potential effects lasting beyond the construction period, in an intensively developed area used by many residents, businesses and commuters and featuring complex ground and hydrological conditions, sensitive ecological values, as well as important heritage and amenity values.
·The works have the potential for significant environmental effects on a range of environmental values, having regard to the nature of the area within which the project is proposed to be constructed and its dynamic and varied social and community setting.
The plaintiffs’ claims
Ground 1 of the statement of claim alleges a denial of natural justice to the plaintiffs in the context of the inquiry conducted by the third to seventh defendants as members of the North East Link Inquiry and Advisory Committee (‘IAC)’ by reason of the conduct of the project team (‘proponent’) within the Major Transport Infrastructure Authority (‘MTIA’) of the State and the IAC itself (‘disputed issue’).
Under the heading of ‘Conduct of the Proponent’, the plaintiffs plead:
the Proponent could have provided, but did not provide, further information about a final design, or possible designs, of the [works], sufficient to enable the [plaintiffs] adequately to consider the environmental effects of the [works], and to present evidence and submissions to the IAC accordingly.
The State’s defence
In its defence dated 15 May 2020, the State denies the allegation made by the plaintiffs and says:
(i)it could not have provided further information about a final design of the [works] because a final design had not been determined;
(ii)the reference to "could have" and "possible designs" both separately and read conjunctively… are vague and uncertain;
(iii) without prejudice to the position set out in (ii) above, says that:
A.it provided information in the EES and during the course of the IAC hearing concerning the design process that was adopted in the development of the Reference Project;
B.it provided information during the course of the IAC hearing concerning design alternatives to the Reference Project at no stage during the IAC hearing did any of the [plaintiffs] apply to the IAC for an order or direction that it… produce any additional documents or information of the type described…;
C.at no stage during the IAC hearing did the IAC make an order or direction that it… produce any additional documents or information of the type described…;
D.it provided sufficient information to the [plaintiffs] and to the IAC to enable an assessment of the environmental effects of the [works];
Discovery request
On 22 May 2020, the plaintiffs sought discovery from the Minister and the State as to five categories of documents:
1.All documents that were before the Minister when he made his Assessment, or were considered by the Minister for the purpose of making his Assessment, including without limitation any brief given to the Minister for the purpose of him making his Assessment.
2. All documents that were before the Minister when he made his:
(a) purported decision under section 20(4) of the Planning Act;[1]
(b) Approval under section 35 of the Planning Act;
(c) purported decision under section 36 of the Planning Act,
or were considered by the Minister for the purpose of making those decisions, including without limitation any brief given to the Minister for the purpose of making those decisions.
3.All documents on which the Minister relies in making the allegations and denials in his defence, other than documents that were before the IAC when it made its Report to the Minister and documents discovered under paragraphs 1 and 2 above.
4.All documents on which the State relies in making the allegations and denials in its defence, other than documents that were before the IAC when it made its Report to the Minister.
5.All documents created between 10 April 2019 and 22 October 2019 that identify or describe a possible design of the [works] or a part of the [works], other than:
(a) such documents as were before the IAC;
(b) such documents as the State provided to the [plaintiffs].[2]
[1]Planning and Environment Act 1987 (Vic).
[2]Emphasis added.
The letter that accompanied the discovery request stated:
…we would expect the State to discover any concept plans, concept designs and other design documents created during the stated period. In this regard, we note that during that period, the State shortlisted three consortia for the primary works package, following receipt of Expressions of interest, which EOIs would seem to have contained such documents.
The State objected to discovery of the documents described in category 5 of the discovery request on the following ground:
The [State] objects to the production of this category of documents on the grounds of relevance. Neither the [State] nor the IAC relied upon any documents in the category sought in the IAC hearing and the IAC had no regard to such documents in the making of the IAC Report. In those circumstances and having regard to the relevant statutory framework, there was no obligation to provide such documents to the [plaintiffs] in the IAC hearing.
This application concerns only the documents sought in category 5 of the discovery request (‘category 5 documents’).
Plaintiffs’ submissions
The main points made by the plaintiffs in support of discovery of the category 5 documents are:
(a)the documents sought are relevant to the disputed issue because the plaintiffs’ case is that the State could have provided possible designs of the works to the plaintiffs but did not;
(b)discovery of the category 5 documents will assist the plaintiffs to establish the documents that the proponent did not give the IAC;
(c)there has been no application to strike out any part of the statement of claim; and
(d)breach of procedural fairness can occur without error on the part of the decision-maker where there is objective unfairness[3] – eg where a third party standing in a special position vis-à-vis the decision-maker fails to provide relevant evidence.
[3]Citing R v Wise (2000) 2 VR 287, 293–4 [19] (Ormiston JA, Brooking JA agreeing at 288 [1]); Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438, 448 [22] (Gleeson CJ).
State’s submissions
The main points made by the State against discovery of the category 5 documents are:
(a)the documents sought are irrelevant or peripheral to the central issues;
(b)there is no support in Australia for the ‘special position’ principle relied on by the plaintiffs;[4]
(c)even if such a principle exists in Australian law, it has no operation in the present case; and
(d)the discovery request is speculative and does not warrant discovery.
[4]Citing R v Criminal Injuries Compensation Board; ex parte A [1999] 2 AC 330.
Relevant authority
Rule 29.01.1(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) provides in substance that unless the Court otherwise orders, discovery is limited to:
(a) documents on which the party relies;
(b) documents that adversely affect the party’s own case;
(c) documents that adversely affect another party’s case; and
(d) documents that support another party’s case.
In Liesfield v SPI Electricity Pty Ltd, Forrest J held that while the Court’s powers are broad, both the Civil Procedure Act 2010 (Vic) (‘CPA’) and the Rules mandate that an order for discovery should be directed at finding the most efficient, effective and economical management of the discovery process, bearing in mind the nature and complexity of the trial.[5]
[5](2013) 43 VR 493, 500 [25].
In Volunteer Fire Brigades Victoria Inc v Country Fire Authority, his Honour also said:
The overriding consideration of the CPA is to ensure that the parties receive a fair trial… However, a fair trial is not a perfect trial. It is, rather, the best trial that a court can provide to the parties within reason and in proportion to the issues in dispute and the court’s resources. Accordingly, demands for discovery of documents which are peripheral to the central issues cannot be entertained. The Court is obliged to focus on the central issues as best it can be determined at this point in the litigation.[6]
[6][2016] VSC 573, [34].
In Moreland City Council v Minister for Planning, Daly AsJ said as to the scope of discovery in the East-West link judicial review proceeding:
The main principles… can be summarised as follows:
(a)discovery in judicial review cases will not be ordered in the usual case, but may be ordered where the applicant has ‘a good case proof of which would be aided by discovery’;
(b)where the proceeding before the Court requires the court to assume a fact finding role, discovery may well be ordered to assist the court in fulfilling that role;
…
(e)while there appears to be a more relaxed approach to the question of ‘fishing’ in later decisions compared with earlier decisions it is still the case that the making of a mere assertion in an originating process, without more, is insufficient to persuade a Court to exercise its discretion to order discovery in judicial review matters.
In my view, the threshold test is whether the applicant has a good, or at least an arguable case, proof of which would be aided by discovery, subject to any countervailing authority or discretionary factors.[7]
[7][2014] VSC 468, [13]–[14] (citations omitted).
In Australian Society for Kangaroos Inc v Secretary Department of Environment Land Water and Planning, Ginnane J said:
Discovery is often not ordered in judicial review proceedings because the documents evidencing the decision under review are usually before the court including a statement of reasons. But discovery can be ordered if the plaintiff has a good, or at least arguable, case proof of which would be aided by discovery. However, that is subject to any countervailing or discretionary factors, including the nature of the case and the time at which the application is made. It is sometimes said that the same discovery rules that apply in civil cases also apply in judicial review cases. But, in judicial review cases, while any discovery request will be assessed by reference to the issues raised, usually the primary focus will be on the documents that were before the decision-maker and which will have been provided to the plaintiff and be before the court.[8]
[8][2018] VSC 88, [21].
Discussion
The plaintiffs allege in the statement of claim that the proponent could have provided but did not provide information about a final design, or possible design of the works, sufficient to permit them to adequately understand the environmental effects of the works, and to present evidence and submissions to the IAC. The State pleads that this allegation is vague and uncertain, and says that it provided the IAC and the plaintiffs with sufficient information to enable an assessment of the environment effects of the works. It otherwise denies the allegation.
In accordance with the authority set out above, I adopt as a threshold test whether the plaintiffs have a good or at least arguable case that would be aided by discovery, subject to any countervailing authority or discretionary factors.
The proceeding is brought by four legal government bodies against the Minister and the State. The project is a large scale infrastructure project with substantial works to be undertaken over several years within the municipal boundaries of the plaintiffs.
I am satisfied on the information available to me at this stage of the proceeding that the disputed issue is a serious issue to be tried and that the plaintiffs have an arguable case. I have not yet had the benefit of evidence or submissions as to the disputed issue or formed any view as to the ultimate merits of the plaintiffs’ claims.
In Oswal v Australia and New Zealand Banking Group, Sifris J observed that discovery can only be judged by the issues as determined by the pleadings.[9] The objection principally taken by the State is relevance. The State’s objection must fail as the allegation of possible alternative designs not put to the IAC or provided to the plaintiffs is clearly raised in the statement of claim and denied by the State in its defence.
[9][2016] VSC 134, [37].
I am satisfied that limited discovery of the category 5 documents will assist all parties in their submissions and ultimately the Court in deciding the disputed issue.
I am concerned however that the number of documents generated in electronic or paper form in relation to the project is likely to be extremely large.
It is important in making an order for discovery of the category 5 documents to minimise as much as possible the burden of the discovery process. This will address at least in part the State’s concern that the scope of the documents sought is overly broad and oppressive.
The State submits that the overwhelming majority of documents that may fall within category 5 are likely to be refinements to the reference design or other designs that were before the IAC or responses to issues raised in the IAC hearing or by way of requests for information.
I accept that it will not assist in the resolution of the disputed issue to discover drafts, duplicates, refinements or other documents that are merely iterative of design plans or documents previously provided to the IAC or made available to the plaintiffs.
The environment effects statement was exhibited on 10 April 2019, and the IAC reported to the Minister on 22 October 2019. This is the period for which the plaintiffs seek discovery of the category 5 documents. The State contends for a shorter period ending on 16 September 2019 which is the date the IAC hearing concluded. The plaintiffs submit that the correct date is 22 October 2019 when the IAC became functus officio by giving its report to the Minister. Although there may not be much difference in practical effect, I accept the plaintiffs’ submission that the appropriate end date is 22 October 2019.
As for the period for additional discovery to be completed, I accept the State’s submission that a period of two weeks is necessary rather than one week as suggested by the plaintiffs.
Conclusion
The Court will make an order requiring the State to discover documents generated between 10 April 2019 and 22 October 2019 constituting or evidencing possible designs of the works or part of the works but excluding:
(a)documents constituting or evidencing the reference design or other designs of the works or part of the works that were before the IAC or have previously been provided to the plaintiffs; and
(b)drafts, duplicates, refinements and documents iterative of the reference design or other designs of the works or part of the works that were before the IAC or have previously been provided to the plaintiffs.
SCHEDULE OF PARTIES
| BANYULE CITY COUNCIL | First Plaintiff |
| BOROONDARA CITY COUNCIL | Second Plaintiff |
| WHITEHORSE CITY COUNCIL | Third Plaintiff |
| MANNINGHAM CITY COUNCIL | Fourth Plaintiff |
| THE MINISTER FOR PLANNING | First Defendant |
| THE STATE OF VICTORIA | Second Defendant |
| NICK WIMBUSH in his capacity as a member of the North East Link Inquiry and Advisory Committee | Third Defendant |
| DALIA COOK in her capacity as a member of the North East Link Inquiry and Advisory Committee | Fourth Defendant |
| MANDY ELLIOTT in her capacity as a member of the North East Link Inquiry and Advisory Committee | Fifth Defendant |
| ELIZABETH HUI in her capacity as a member of the North East Link Inquiry and Advisory Committee | Sixth Defendant |
| PETER EDWARDS in his capacity as a member of the North East Link Inquiry and Advisory Committee | Seventh Defendant |
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