Bass Strait Freight Pty Ltd v Colac Otway Shire Council
[2024] VSC 590
•24 September 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 00285
| BASS STRAIT FREIGHT PTY LTD (ACN 652 909 558) & ANOR (according to attached Schedule) | Plaintiffs |
| v | |
| COLAC OTWAY SHIRE COUNCIL & ANOR (according to attached Schedule) | Defendants |
---
JUDGE: | Goulden AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 July 2024 |
DATE OF RULING: | 24 September 2024 |
CASE MAY BE CITED AS: | Bass Strait Freight Pty Ltd v Colac Otway Shire Council |
MEDIUM NEUTRAL CITATION: | [2024] VSC 590 |
---
JOINDER – Rule 9.06 of the Supreme Court (General Civil Procedure) Rules 2015 – Discretion to join – Judicial review proceedings seeking mandamus or mandatory injunction against proposed defendant – Relevance of the nature of the relief sought against proposed defendant given nature of power sought to be compelled – No direct effect on the rights of the proposed defendant – No justiciable controversy between the plaintiffs and the proposed defendant – Proposed relief futile – Interests of justice do not favour the joinder.
DISCOVERY – Rule 29.07 of the Supreme Court (General Civil Procedure) Rules 2015 – General discovery in accordance with r 29.01.1 – Discovery in judicial review proceedings – Insufficient identification of issues in dispute in the proceeding – No evidence to ground a suspicion that the plaintiffs have a good case which will be assisted by discovery – Categories for discovery sought extremely broad – Discovery request speculative – No discovery ordered.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr B Murphy | Corrs Chambers Westgarth |
| For the Defendants | Mr R Heath KC and Ms M Agnoletti | Maddocks |
HER HONOUR:
On 23 July 2024, I heard the plaintiffs’ application in this proceeding to join the Great Ocean Road Coast and Parks Authority (‘GORCAPA’) as a defendant, and for discovery orders against the defendants, including GORCAPA if joined.
Background
The first plaintiff, Bass Strait Freight Pty Ltd, is the operator of two commercial cargo vessels, the Matthew Flinders III (‘MF III’) and Matthew Flinders IV (‘MF IV’). The second plaintiff, Marine Freight Holding Pty Ltd, owns the vessels.
The first defendant, Colac Otway Shire Council was, until 30 June 2024, the port manager for the Port of Apollo Bay under the provisions of the Port Management Act 1995 (‘PMA’). The role of port manager was delegated by the Council to the second defendant, Ms Fiona Waddington. Further, because no harbour master had been appointed, the second defendant was also the harbour master of the Port by the operation of s 44G of the PMA, until she resigned from her employment with the first defendant on 27 May 2024.[1]
[1]Affidavit of Fiona Ruth Waddington sworn 9 July 2024, [23].
On 17 January 2024, the second defendant wrote to the first plaintiff issuing a written direction, in purported exercise of her power as harbour master under s 232 of the Marine Safety Act 2010 (‘MSA’), that neither the MF III nor the MF IV may enter the waters of the Port (‘s 232 Direction’).[2] The effect of the s 232 Direction was to prohibit either vessel from entering the Port.
[2]A copy of the s 232 Direction, comprising a letter from the second defendant (on the first defendant’s letterhead) to the first plaintiff dated 17 January 2024, was handed up in Court at the hearing by the plaintiffs.
By Originating Motion dated 25 January 2024, the plaintiffs commenced this proceeding seeking judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).
By summons, also filed on 25 January 2024, the plaintiffs sought, amongst other orders, urgent interlocutory relief to permit their vessels to travel from King Island to the Port to unload shipments of cattle. On 2 February 2024, Keogh J dismissed the application for interlocutory relief. His Honour’s reasons, which provide a useful and more detailed description of the background to this proceeding, are published as Bass Strait Freight Pty Ltd & Anor v Colac Otway Shire Council & Anor.[3]
[3][2024] VSC 19.
The plaintiffs filed an Amended Originating Motion on 18 March 2024 (‘AOM’). The relief sought by the plaintiffs at paragraphs 1 to 7 of the AOM is reproduced below.
1. A declaration that the written direction dated 17 January 2024 purported to be given by the second defendant to the first plaintiff pursuant to section 232 of the [MSA] ([s 232] Direction) is invalid.
2.In the alternative to paragraph 1, a declaration that the second defendant has failed to exercise her discretion under s 235 (1) of the [MSA] to revoke the [s 232] Direction.
3.A declaration that the [MF] III or [MF] IV
arevessels are entitled to enter the waters of the Port of Apollo Bay.
4. Relief in the nature of certiorari to quash the [s 232] Direction.
5. Relief in the nature of prohibition to restrain the defendants and their agents or delegates from taking any steps to enforce or rely on the [s 232] Direction.
6. In the alternative to paragraphs 4 to 5, relief in the nature of mandamus requiring the second defendant to exercise her discretion under s 235 (1) of the [MSA] to revoke the [s 232] Direction.
7. In the alternative to paragraphs 4 to 6, a mandatory injunction requiring the second defendant to exercise her discretion under s 235 (1) of the [MSA] to revoke the [s 232] Direction.
The focus of the relief sought is on the s 232 Direction and on the discretionary power contained in s 235(1) of the MSA (‘s 235(1) Discretion’), by which the harbour master may amend or revoke the s 232 Direction.
By summons filed on 7 May 2024, the plaintiffs seek:
(a) an order, under r 9.06 of the Rules, to join GORCAPA as a defendant;
(b) leave to amend the AOM to name GORCAPA as a defendant;
(c) orders, under r 29.07 of the Rules, or alternatively, s 55 of the Civil Procedure Act 2010 (‘CPA’), compelling discovery by the defendants (including GORCAPA if joined) of certain categories of documents; and
(d) in the alternative to specific discovery per (c), orders for general discovery in accordance with r 29.01.1 of the Rules (with the requirements under r 29.01 dispensed with pursuant to r 2.04(1)).
Since 1 July 2024, GORCAPA replaced the first defendant as port manager under the PMA. It is not presently known if a harbour master has been appointed by GORCAPA.
It is uncontroversial that neither the first defendant nor the second defendant exercised the s 235(1) Discretion to amend or revoke the s 232 Direction prior to 30 June 2024, thereby maintaining the status quo. Similarly, since 1 July 2024, GORCAPA has not amended or revoked the s 232 Direction using the s 235(1) Discretion.
The Rules Permitting Joinder
Rule 9.06 of the Rules sets out alternative tests for when a party may be joined to a proceeding after commencement. Although reference is made to r 9.06(b)(ii) alone in the first paragraph of the plaintiffs’ submissions filed on 24 June 2024, the substance of their submissions addresses joinder under both limbs of r 9.06(b). This rule provides:
At any stage of a proceeding the Court may order that—
…
(b) any of the following persons be added as a party—
(i)a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or
(ii)a person between whom and any party to the proceeding there may exist a question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding;
The legal principles concerning joinder pursuant to the discretion contained in r 9.06(b) are well established and I will deal with them in short compass.
(a) Rule 9.06(b)(i) permits the Court to join a non-party where that non-party ought to have been joined as a party or where, as is contended here, they are a party whose presence is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon. The ‘necessity’ contemplated by the rule is broadly to achieve finality and avoid a multiplicity of proceedings. The rights of the party proposed to be joined must be directly affected by the outcome.[4] This distinguishes instances where joinder of a non-party is necessary from those where, their rights being only indirectly or consequentially affected, joinder of a non-party is not necessary.[5]
[4]Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52, 56 (Privy Council).
[5]News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410, 525 (‘News Ltd’). See also Chickabo Pty Ltd & Ors v Zphere Pty Ltd & Ors (No 2) [2019] VSC 580.
(b) Rule 9.06(b)(ii) is broader.[6] An applicant who seeks to invoke the Court’s jurisdiction under r 9.06(b)(ii) must prove that:
[6]Boral Resources (Vic) Pty Ltd v Robak Engineering and Construction Pty Ltd (1999) 2 VR 507, 525–526 [68] (Chernov JA).
(i) there are two entities namely the person to be added as a party and a party to the proceedings;
(ii) between the two entities there may exist a question arising out of or relating to or connected with any claim in the proceeding; and
(iii) it is just and convenient to determine that question between the proposed party and the other party as well as between the parties to the proceeding.[7]
The Rules further define what is meant by the term ‘question’.[8] The applicant need not demonstrate that there is a cause of action, rather, that there is a ‘justiciable controversy’ between the party to the proceeding and the party sought to be joined.[9]
[7]Tatterson v Wirtanen [1998] VSC 88, [30] (‘Tatterson’).
[8]Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 1.13(1) (‘Rules’).
[9]S Pirrie Equities Pty Ltd v Venetian Media Group Pty Ltd [2023] VSC 253, [87] (‘S Pirrie Equities’).
Recognising the discretionary nature of the power to join under this rule, the Court may decline to permit joinder even where the requirements of either limb are satisfied. The exercise of the discretion is now primarily conditioned by ss 8(1) and 9 of the CPA. The Court should take the course most conducive to the just, efficient, timely and cost effective resolution of the real issues in dispute having regard to the objects specified in s 9(1) and the matters specified in s 9(2) of the CPA.[10] This may include imposing conditions on the joinder.[11]
[10]Lee v Korean Society of Victoria [2015] VSC 262, [9].
[11]Stuart v Mordialloc Sporting Club Inc; John Barr Investments Pty Ltd v Mordialloc Sporting Club Inc [2021] VSC 244, [306]–[312].
The Court will have regard to, amongst other factors, any delay in the making of the application, prejudice or unfairness that may be suffered by any other party by reason of the joinder, and whether the proposed claims are futile or bad in law.[12] A proposed claim will be futile if it would not survive an application for summary judgment, under s 63 of the CPA, by the proposed party had it been sued in separate proceedings.[13] Regarding futility, in S Pirrie Equities, Elliott J stated the principle neatly as follows:
Under either limb of rule 9.06(b), ordinarily the merits or prospects of the claim sought to be brought against a party are not relevant to the question of whether they ought to be joined. However, where the claims made against a party that is proposed to be joined under rule 9.06(b) are ‘obviously bad in law or futile’ or have ‘no real prospects of success’, the application will usually be refused.[14]
[12]For discussion of these factors: see, eg, Main-Road Property Group v Pelligra & Sons [2007] VSC 43, [23]–[28].
[13]Hutchison Pty Ltd v Port Melbourne Land Custodians Pty Ltd [2022] VSC 339, [36].
[14]S Pirrie Equities [79] (citations omitted).
Should GORCAPA be joined?
The plaintiffs submit that GORCAPA should be joined because:
(a) given that GORCAPA is the new port manager, any order made in respect of the s 232 Direction, or to compel the exercise of the s 235(1) Discretion to amend or revoke that direction, will directly affect the interests of GORCAPA, such that r 9.06(b)(i) is engaged; and
(b) given that it has assumed responsibility for the Port, some of the questions to be determined in the proceeding now arise as between the plaintiffs and GORCAPA, such as the validity of the s 232 Direction and whether the plaintiffs’ vessels should be permitted to enter the Port, such that r 9.06(b)(ii) is engaged.
The plaintiffs amplify these submissions as follows.
(a) The second defendant communicated with GORCAPA before making the s 232 Direction which demonstrates its involvement in the decision-making process. These communications are the subject of the discovery application.
(b) The ‘practical reality’[15] is that GORCAPA has inherited the Port and has ‘inherited the [s 232] [D]irection’,[16] and ‘[i]t has to enforce the [s 232] [D]irection.’[17]
[15]Transcript of Proceedings, Bass Strait Freight Pty Ltd v Colac Otway Shire Council (Supreme Court of Victoria, S ECI 2024 00285, Goulden AsJ, 23 July 2024) T2.25 (‘Transcript’).
[16]Transcript T2.27.
[17]Transcript T2.27–T2.28.
(c) Since GORCAPA has replaced the first defendant as port manager, and the second defendant has resigned from her employment, GORCAPA must be made a party for it to be bound by the Court’s determination. This will avoid a multiplicity of proceedings and afford it the opportunity to be heard in relation to the relief which will bind it.
(d) Until GORCAPA is joined to the proceeding, it is simply not known what position it will take in respect of the s 232 Direction. Also, it cannot be compelled to act in the particular way in which the plaintiffs seek to compel the second defendant to act, under s 235(1) of the MSA, as set out in paragraphs 6 and 7 of the AOM.[18]
(e) If the Court quashes the s 232 Direction and the plaintiffs’ vessels are allowed to enter the waters of the Port, GORCAPA’s rights and liabilities as its port manager will be directly affected.
[18]The defendants sought to characterise part of the Plaintiffs’ Reply Submissions filed on 17 July 2024, at [5], as a concession that GORCAPA could not be compelled, as a matter of law, to exercise the s 235(1) Discretion to revoke the s 232 Direction. However, I am satisfied that is not the meaning the plaintiffs intended to convey. Rather, in my view, the plaintiffs intended no more than that the Court cannot compel GORCAPA to do anything unless it is joined as a party and has, thereby, submitted to the Court’s jurisdiction.
The defendants criticise the plaintiffs for failing to identify their claims against GORCAPA in advance of the hearing. In particular, they criticise their failure to file an affidavit in support of their joinder application in accordance with r 9.07(2) of the Rules. However, that rule does not apply to applications for joinder by a plaintiff. Instead, it operates, according to its terms, where ‘a person’ applies for an order ‘adding the person as a party’, in which event that person must identify their interest in the proceeding. That said, usually a party seeking to join another person or entity against whom they will seek relief places a proposed amended pleading before the Court simply for the reason that it serves to elucidate the relevant interests that might be affected and/or the ‘question’ that is connected to or arises out of the proceeding that it is just and convenient to determine at the same time. Of course, failing to do so does not bar the joinder if the moving party can demonstrate that the rule is engaged and the discretion ought be exercised. In this case, the plaintiffs articulated the relief they were likely to seek against GORCAPA at the hearing of the application. Presumably in response to the cogent arguments mounted by the defendants in opposition, the plaintiffs reformulated that relief in their supplementary submissions filed after the hearing, as explained further below.
Is the Discretion to Join Enlivened?
In moving their application in reliance on r 9.06(b)(i), the plaintiffs must demonstrate that the rights and liabilities of GORCAPA will be directly affected by the outcome of the proceedings, thus making it a necessary party. The plaintiffs do not suggest that they could, or would, seek the relief against GORCAPA which concerns the validity of the s 232 Direction. Self-evidently, GORCAPA did not make the s 232 Direction. However, the plaintiffs maintain that its legal rights and liabilities will be directly affected if that relief is granted because the ‘practical reality’[19] is that GORCAPA has inherited the Port and as a result, ‘inherited the [s 232] Direction’,[20] and ‘has to enforce [it].’[21] They further submit that if the s 232 Direction is quashed, this would necessarily mean that the plaintiffs’ vessels would be allowed to enter the waters of the Port, which in turn would impact GORCAPA’s rights and liabilities as the entity now responsible for the Port.
[19]Transcript T2.25.
[20]Transcript T2.27.
[21]Transcript T2.27–T2.28.
Under the scheme of the MSA, the s 232 Direction binds all persons including GORCAPA, absent an amendment or revocation under s 235(1) or a decision of the Court quashing it. Penalties may be imposed for contraventions of the s 232 Direction pursuant to s 237 of the MSA. However, absent authorisation of Safe Transport Victoria,[22] GORCAPA does not have powers of enforcement under the MSA in relation to contraventions of the s 232 Direction. In light of this scheme, the defendants submit, and I accept, that GORCAPA does not need to be a party to this proceeding for:
[22]Marine Safety Act 2010 (Vic) s 292(1)(b) (‘MSA’).
(a) the s 232 Direction to remain in place;
(b) the Court to quash the s 232 Direction (and for it to no longer bind anyone);
(c) the purposes of enforcing the s 232 Direction, which is done by others.
Of course, GORCAPA will be concerned to know whether the s 232 Direction remains in effect or has been quashed and whether the plaintiffs’ vessels are allowed to enter the Port. However, there will not be a direct bearing on its proprietary or personal rights akin to that required by the relevant authorities.[23] In other words, GORCAPA’s rights and liabilities will not be directly affected by the relief that may be granted by the Court in this proceeding concerning the validity of the s 232 Direction. It will be affected in the same way as other non-parties. That is, ‘the effect of the [orders on GORCAPA] can be characterised as only indirect or consequential.’[24]
[23]For discussion of relevant authorities: see, eg, Chickabo Pty Ltd & Ors v Zphere Pty Ltd (No 2) [2019] VSC 580.
[24]News Ltd 525.
The plaintiffs’ submissions also premise the necessity for joinder on the uncertainty about what GORCAPA may do in relation to the s 232 Direction in the future. The plaintiffs submit that this doubt cannot be resolved ‘[u]ntil GORCAPA is joined as a party to the proceeding’.[25] I accept the defendants’ submissions that what GORCAPA may or may not do about the s 232 Direction as the entity now responsible for the Port is mere conjecture. The uncertainty regarding whether GORCAPA will make a new direction in the future if the s 232 Direction is quashed, and whether any such direction will affect the plaintiffs’ rights, does not provide a valid basis upon which to join GORCAPA to the extant proceeding. In this regard, the defendants further submit that there is currently no justiciable controversy as between the plaintiffs and GORCAPA concerning the validity of the s 232 Direction which would justify its joinder under the second limb of r 9.06(b) in respect of that question alone. I agree. GORCAPA has not made any such direction of its own and it is impossible to know what it may or may not do in the future and how that might affect the plaintiffs.
[25]Plaintiffs’ Reply Submissions filed on 17 July 2024, [5].
At the hearing, the plaintiffs submitted that GORCAPA is a necessary party by reason that the relief in paragraphs 5, 6 and 7 of the AOM can no longer be sought against the first and second defendants and would instead need to be sought against GORCAPA. This was the first time that the plaintiffs identified, with any precision, the relief to be sought against GORCAPA if joined. By paragraph 5 of the AOM, the plaintiffs seek to restrain the defendants and their agents or delegates from enforcing or relying on the s 232 Direction, which relief runs into the difficulties identified in paragraph 19 above, that is, GORCAPA does not have an enforcement role. By paragraphs 6 and 7 of the AOM, the plaintiffs seek to compel GORCAPA to exercise the s 235(1) Discretion to revoke the s 232 Direction. In this regard, the plaintiffs submit, GORCAPA’s interests will be directly affected by the outcome of the proceeding if relief in the nature of mandamus or a mandatory injunction is grated.
In response, the defendants submit that the Court cannot compel GORCAPA to exercise the s 235(1) Discretion to revoke the s 232 Direction for the reasons that: first, this would require the Court to engage in impermissible merits review; and second, relief sought in the nature of mandamus and/or a mandatory injunction is discretionary and does not lie to compel the exercise of a discretionary power in a particular way. The defendants submit that in the result, in so far as this relief is concerned, the discretion to join is not enlivened because GORCAPA’s rights and liabilities cannot be affected for the purposes of the first limb, nor is there any justiciable controversy as between the plaintiffs and GORCAPA for the purposes of the second limb. I accept the defendants’ submissions for the reasons addressed in turn below.
First, as they articulated at the hearing, the plaintiffs say they will seek to compel GORCAPA to exercise the s 235(1) Discretion in a particular way, that is, ‘to revoke’ the s 232 Direction.[26] On one view, asking the Court to determine that GORCAPA must revoke the s 232 Direction requires the Court to undertake a merits review and substitute its own decision for that of the original decision maker in favour of the plaintiffs. This is not the proper function of the Court in a proceeding under Order 56 of the Rules. That a de facto merits review is intended by the plaintiffs is evidenced by their identification, in their submissions, of one of the questions for determination in the proceeding as being ‘whether the plaintiffs’ vessels should be permitted to enter the waters of the Port’.[27] That question requires merits review of the decision and does not fall for determination between GORCAPA and the plaintiffs, or at all, in this judicial review proceeding.
[26]This is identical to the relief presently sought against the first and second defendants in the AOM.
[27]Plaintiffs’ Submissions filed on 24 June 2024, [17].
Second, mandamus is only available to compel the performance of a public duty.[28] It is well settled that mandamus is not available to compel the exercise of a discretionary power in a particular way[29] other than in limited circumstances, namely where there is a duty to act or there is only a discretion as to the outcome.[30] The Court must construe the relevant power in each instance to determine whether a discretionary power involves a discretion confined to its outcome or whether there is a discretion to act or reach a conclusion at all.[31] In this regard, it is essential to consider the wording of the s 235(1) Discretion in the MSA, which is as follows:
A direction given by a harbour master under section 232 may be amended or revoked by any harbour master who has been engaged for the waters in respect of which the direction applies.
By its terms, the discretion conferred by the section is extremely broad. As Counsel for the defendants described: ‘[it] is open-ended, permissive [and] confers a broad authority’.[32] The section confers a discretion with respect to the exercise of the power, that is, it ‘may’ be exercised to amend or revoke a direction under s 232 by ‘any’ harbour master. I accept the defendants’ submissions that there is nothing in the language of the section that supports a reading that the section confers an obligation on the harbour master to exercise the power in a particular way, such as to ‘revoke’ the direction. Hence, the Court cannot grant mandamus against GORCAPA in the form articulated by the plaintiffs at the hearing, that is, to compel it to revoke the s 232 Direction. Although neither the plaintiffs, nor the defendants, directly addressed the availability of a mandatory injunction (sought in the alternative) to compel the exercise of the s 235(1) Discretion in a particular way or at all,[33] the Court would not grant a discretionary remedy merely because another one is not available. If the Court cannot grant the relief articulated at the hearing to compel GORCAPA to exercise the s 235(1) Discretion to revoke the s 232 Direction, then it follows that there is no justiciable controversy and no reason to join.[34]
[28]Moran v Secretary to the Department of Justice and Regulation & Ors(2015) 48 VR 119, 125 [21].
[29]Knight v Wise [2014] VSC 76, [92] (‘Knight’).
[30]McCabe v Westin; McCabe v Pickering [2024] VSC 145 at [100] and the authorities cited therein (‘McCabe’).
[31]McCabe [100].
[32]Transcript T16.9–T16.10.
[33]See generally, Della-Vedova v State Energy Commission (1990) 2 WAR 561.
[34]Tatterson [33].
The plaintiffs later submitted that it is ‘telling’[35] that the defendants have not sought to challenge the relief sought against them in paragraphs 6 and 7 of the AOM. They say that ‘[i]t comes ill from the defendants’ mouths now to contend that the same relief sought against an alternative defendant is somehow unsustainable.’[36] There is no obligation on a defendant to challenge, prior to trial, claims made against it. There are many reasons a defendant may elect not to do so, especially where the making of an application, such as for summary determination, would be distracting in terms of time and resources and would not result in the summary disposition of the whole of the proceeding, obviating the need for a trial. The defendants fairly raised their arguments concerning the availability of the relief in their initial written submissions in the context of the joinder application. They identify these as the very arguments the defendants will make at trial in relation to the relief sought against them in paragraphs 6 and 7 of the AOM.
[35]Plaintiffs’ Supplementary Submissions dated 31 July 2024, [18].
[36]Plaintiffs’ Supplementary Submissions dated 31 July 2024, [18].
Should the Court Exercise the Discretion to Join if Enlivened?
The defendants also described the plaintiffs’ articulated relief as being futile or ‘bad in law’.[37] As noted previously, this is one of the considerations relevant to the decision to exercise the discretion to join once it is enlivened. There is no distinction between the defendants’ arguments as to the lack of justiciable controversy for the purposes of r 9.06(b)(ii) and the claims being futile or bad in law, other than how those arguments operate in relation to the discretion to join. The former operates at the level of deciding whether the second limb of the discretion is enlivened, and the latter operates alongside the consideration of other factors when the Court considers, the discretion having been enlivened, whether to exercise it. The question of futility or whether the claims are bad in law, only falls for consideration if I am wrong in finding, as I have, that neither limb of r 9.06(b) is enlivened in this proceeding on the basis of the relief that was articulated at the hearing.
[37]Transcript T20.17.
During the hearing, I asked the plaintiffs to address the Court on whether it should permit joinder of claims against a proposed defendant if, as asserted by the defendants, those claims are futile or bad in law. Following the hearing, to deal more fully with this question, the plaintiffs sought to supplement their written submissions in support of their application by referring the Court to some additional cases. In response to this request, I granted leave to the parties to deliver further brief written submissions addressing the following issues:
Issue 1: The relevance of the strength of the claim to be made against a proposed party to the exercise of the Court’s discretion to order joinder, having regard to Hutchison Pty Ltd v Port Melbourne Land Custodians Pty Ltd [2022] VSC 339 and the cases cited therein.
Issue 2: Whether the Court could be satisfied, in this case, that there is no real prospect of success of the plaintiffs’ proposed claims against the proposed defendant.
The plaintiffs and the defendants each took up the opportunity to file further written submissions.
Although the grant of leave was framed around the plaintiffs’ proposed claims against GORCAPA identified during the hearing, the plaintiffs, by their written supplementary submissions and presumably recognising the insurmountable difficulties they faced, reformulated the relief they intend to seek as follows.
In the alternative to paragraphs 4 to 5, relief in the nature of mandamus requiring the third defendant (or its delegate) to give proper consideration to the amendment or revocation of the Direction under s 235(1) of the Act.
In the alternative to paragraphs 4 to 6, a mandatory injunction requiring the third defendant (or its delegate) to give proper consideration to the amendment or revocation of the Direction under 235 (1) of the Act.[38]
The plaintiffs submit that the status quo cannot be maintained indefinitely and that there is an obligation to make a decision, such that GORCAPA (or its delegate) must at least consider exercising the s 235(1) Discretion to revoke or amend the s 232 Direction. They submit the discretion in s 235(1) is coupled with a compellable duty to ‘consider’ the exercise of the statutory power. Hence, the relief is now cast as a claim for mandamus or a mandatory injunction to compel GORCAPA ‘to give proper consideration’ to exercise the s 235(1) Discretion to amend or revoke the s 232 Direction. The plaintiffs further maintain that this reformulated relief is not futile, and, in effect, that the plaintiffs’ case against GORCAPA would survive an application under s 63 of the CPA.
[38]Plaintiffs’ Supplementary Submissions dated 31 July 2024, [15] (emphasis added).
Whether a statutory power is accompanied by a duty to consider its exercise depends upon the proper construction of the statute, and not upon preconceptions about its existence.[39] The relevant power, its subject matter and sphere of affectation form part of the key considerations in construing the statutory power or discretion.[40] The plaintiffs do not identify any features of the MSA in their written supplementary submissions, such as its language, context and purpose,[41] which may give rise to a duty to consider the exercise of the s 235(1) Discretion. They instead assert that ‘[i]t cannot be the case that entities in the position of the plaintiffs can be permanently denied the opportunity of having their vessels entering the waters of the Port… without any legal recourse.’[42] By this submission, the plaintiffs are really urging the Court to presume that there is a duty nested in the power, susceptible of orders for mandamus. The authorities establish there is no such presumption.[43]
[39]Animals’ Angels e.V. v Secretary, Department of Agriculture (2014) 228 FCR 35, 62–63 [87], 63–64 [91] (‘Animals’ Angels’); Yasmin v Attorney-General (Cth) (2015) 236 FCR 169, 195–196 [113] (‘Yasmin’); Knight [97].
[40]Yasmin 187 [79].
[41]Julius v Lord Bishop of Oxford (1880) 5 App Cas 214, 222–223.
[42]Plaintiffs’ Supplementary Submissions dated 31 July 2024, [9].
[43]See, eg, Yasmin 195–196 [113].
The defendants contend that the plaintiffs’ lately reformulated, proposed claims against GORCAPA are ‘manifestly hopeless and bound to fail’.[44] In their supplementary submissions, they identify legitimate questions concerning the asserted duty to consider, such as when and how often must the duty to consider be performed, or re-visited, and under what circumstances. The defendants submit that the plaintiffs cannot point to any parts of the MSA to provide the answers. For example, they contend there is no procedure provided in the MSA by which a person affected by a s 232 Direction can call upon a harbor master to consider the exercise of the s 235(1) Discretion. The defendants submit that finding a duty in these circumstances would likely place an ‘intolerable burden’[45] on a harbour master by subjecting them to a limitless duty to consider whether to exercise the s 235(1) Discretion to amend or revoke the s 232 Direction.
[44]Defendants’ Outline of Submissions filed on 5 August 2024, [7].
[45]Animals’ Angels 63 [90].
Although the argument is not made by the plaintiffs, I nevertheless observe that the power in s 235(1) is appurtenant to the underlying power in s 232, and it may be argued that its character is influenced by the nature of the underlying power. The presence or absence of the considerations that must be taken into account by force of s 232(2), such as safety risks, are inherently amenable to change and may affect the ongoing appropriateness of the s 232 Direction and, in turn, the appropriateness of the exercise of the s 235(1) Discretion. I consider it is at least arguable, based upon this statutory context, that in some circumstances the harbour master may have a duty to consider the exercise of the s 235(1) Discretion.[46] There may be other arguments to be deployed in support of the duty to consider that have not been ventilated in this application, directed as it is to the question of joinder. Ultimately, I am not in a position to conclude on this joinder application, absent full argument on the statutory construction of the MSA, that the plaintiffs’ foreshadowed relief is bad in law.
[46]Yasmin 187 [79].
Whether the claims are futile is a different question. In addition to their failure to substantiate the existence of the duty for which they contend and beyond asserting the fact that GORCAPA is now managing the Port, the plaintiffs, on whom the burden rests in this application, fail to demonstrate that there is a real prospect that mandamus would be available to compel GORCAPA to consider the exercise of the s 235(1) Discretion. Particularly, they have failed to identify the grounds upon which the duty to consider is contended to arise or if a duty did arise, how the decision maker has failed to comply with it. The grounds set out in the AOM in support of the relief that is sought by the plaintiffs against the first and second defendants do not assist — that form of the relief having been effectively replaced by the re-articulation in the supplementary submissions. Notwithstanding, there is nothing in the supplementary submissions either which demonstrates that the plaintiffs’ claims against GORCAPA would enjoy a real prospect of success beyond an assertion to that effect. Overall, I am far from convinced that the claims against GORCAPA, as they are presently articulated, would survive summary determination.
More fundamentally in the circumstances of this application, I am not satisfied that the interests of justice favour the joinder. The shifting sands of the plaintiffs’ application have ultimately hampered their ability to demonstrate a proper basis for the exercise of the Court’s discretion to join, even if the discretion is enlivened. To embroil a party in litigation on the basis of a futile claim would unjustifiably expose that party to the time and costs of participating in legal proceedings and is inconsistent with the overarching purpose under the CPA. Further, the addition of another party would increase the complexity and costs of the extant proceeding to the detriment of the existing parties and will presumably delay the trial of the proceeding. All of these considerations are inconsistent with the overarching purpose and do not favour the joinder.
I will dismiss the plaintiffs’ application to join GORCAPA.
Application for orders compelling discovery by the defendants (including GORCAPA if joined)
The plaintiffs seek discovery pursuant to r 29.07 of the Rules, alternatively s 55 of the CPA, of the following categories of documents:
(a) communications between the defendants concerning:
(iv) the proposed entry of the MF III or MF IV into the waters of the Port;
(v) the making of the s 232 Direction; and
(vi) deliberations in relation to the possible revocation of the s 232 Direction,
(b) deliberations and assessments undertaken by the defendants (individually or jointly) in relation to the matters set out in subparagraph 35(a)(i) to (iii) above.
In the alternative, the plaintiffs seek orders for general discovery in accordance with r 29.01.1 of the Rules.[47]
[47]In seeking orders for discovery in accordance with r 29.01.1 of the Rules, the plaintiffs first seek that the Court dispenses with the requirement to comply with r 29.01 relying on r 2.04(1).
The plaintiffs submit that the discovery sought by their categories is targeted. They seek to obtain discovery:
of all documents and information that the second defendant had access to before she made the [s 232 Direction] and subsequent to making the [s 232 Direction] in relation to her decision-making process in respect of her power to revoke the [s 232 Direction].[48]
They submit that the discovery will assist the Court and the plaintiffs ‘understand the matters [the second defendant] took into account’[49] in making her decision. They also submit that they have made reasonable efforts to obtain the documents sought from the defendants, who have refused to provide them.
[48]Plaintiffs’ Submissions filed on 24 June 2024, [26].
[49]Plaintiffs’ Reply Submissions filed on 17 July 2024, [10].
The defendants submit that there is no basis for the Court to depart from the usual position that there is no discovery in judicial review proceedings, and that the plaintiffs have failed to articulate how discovery would advance the purposes of the CPA and assist in the resolution of the issues in the proceeding. The defendants further submit that the relevant documents are already before the Court. They contend that the plaintiffs have not made reasonable efforts to obtain the documents from them directly.
Before considering the merits of the parties’ respective arguments, I will turn briefly to the Court’s powers to order discovery, and the so called ‘usual position’ in judicial review proceedings that there be no discovery.
Court’s Power to Order Discovery
The Court has power, under r 29.07(2) of the Rules, to order that any party make discovery in a proceeding that, like this one, is not within r 29.01. The Court also has an overriding discretion under s 55(1) of the CPA to ‘give any directions in relation to discovery that it considers necessary or appropriate.’ In making such directions, including those specifically identified in ss 55(2) and 55(3), the Court is to have regard to the overarching purpose in s 7 of the CPA to facilitate ‘the just, efficient, timely and cost-effective resolution of the real issues in dispute.’
The plaintiffs submit that in so far as their discovery orders are sought against ‘the defendants’, this is intended to include GORCAPA if joined to the proceeding. The plaintiffs’ application has been made without notice to GORCAPA. Given that I will not make orders joining GORCAPA to the proceeding, the point is moot. However, even if I had joined GORCAPA, I am not satisfied that the circumstances in this proceeding would justify the exercise of the Court’s broad discovery powers to make orders against GORCAPA without notice and without it being heard.
The Usual Position that there be No Discovery in a Judicial Review Proceeding
Discovery is ‘often not’[50] ordered in judicial review proceedings, as indicated by the absence of any mention of discovery from the procedure for initiating and conducting judicial review proceedings laid out by the terms of Order 56. Except as ordered under r 29.07, Order 29 is confined in its application to proceedings commenced by writ (or where they proceed as if they were). The rationale behind this is that proceedings apt for commencement by originating motion usually do not involve any substantial disputes of fact, and where judicial review of a decision is sought, the documents evidencing the decision are usually before the Court.
[50]Australian Society for Kangaroos Inc. v Secretary, Department of Environment, Land, Water and Planning [2018] VSC 88, [21] (‘Kangaroos Inc’).
Despite the usual position, the Court may order discovery where, subject to any countervailing or discretionary factors, the plaintiff has a good, or at least an arguable case, proof of which would be aided by the making of discovery.[51] In Kangaroos Inc, Ginnane J stated:
…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.[52]
[51]Ibid.
[52]Kangaroos Inc [21].
As his Honour further explained in Kangaroos Inc, a determination to require discovery of documents beyond those before the decision-maker involves answering the question ‘whether there is evidence to ground a suspicion that the applicant has a good case, proof of which is likely to be aided by discovery’.[53] There must be a sufficient identification of issues in the proceeding to enable the Court to see that the documents sought on discovery will assist proof of a live issue between the parties.[54] Absent sufficient identification of issues, a request for discovery of documents beyond those before the decision-maker is likely speculative, and will amount to fishing. The Court will not lend its procedures to a fishing expedition. As submitted by the plaintiffs, there is a useful summary of the principles for discovery in judicial review proceedings given by Daly AsJ in Moreland City Council & Anor v Minister for Planning& Ors,[55] which I have adopted to assist my ensuing analysis.
[53]Ibid [23] quoting Nestle Australia Ltd v Commissioner of Taxation (1986) 10 FCR 78, 83 .
[54]Vicinity Funds RE Ltd v Commissioner of State Revenue (No 3) (2023) 70 VR 441, 466 [75] citing Jilani v Wilhelm (2005) 148 FCR 255, 273-4 [112].
[55](2014) 203 LGERA 152 (‘Moreland City Council’).
Before considering what documents might be the subject of discovery orders, it is relevant to consider what is already in evidence. The defendants submit that the second defendant, Ms Waddington, has filed four detailed affidavits in the proceeding which explain her process and the information she considered in making the s 232 Direction and in considering to exercise the s 235(1) Discretion. It is submitted that in her first affidavit,[56] Ms Waddington explained extensively, and by reference to documents,[57] the ‘process she undertook’,[58] and the ‘universe of materials’,[59] to which she had regard in making the s 232 Direction including communications that she had with GORCAPA.[60] In addition, it is submitted that there is evidence as to the documents she considered in relation to the s 235(1) Discretion, as follows:
[56]Affidavit of Fiona Ruth Waddington sworn 25 January 2023 (‘First Waddington Affidavit’). The affidavit appears to incorrectly record the year of swearing to be 2023 where it should be 25 January 2024.
[57]Transcript T11.25–T11.30, T12.5–T12.9; First Waddington Affidavit [45]–[49], [53], [55], [57].
[58]Defendants’ Outline of Submissions filed on 10 July 2024, [42].
[59]Transcript T12.7.
[60]First Waddington Affidavit [63]–[80].
(a) in paragraphs 8 to 14 of her second affidavit sworn on 31 January 2024;
(b) in paragraphs 13 to 15, 39 to 47, 54 and 56 to 58 of her third affidavit sworn on 15 April 2024;
(c) in paragraphs 6, 7, 9, 10, 13 and 14 of her fourth affidavit sworn on 9 July 2024.
The defendants submit that the plaintiffs can infer from the second defendant’s extensive evidence laid before the Court the matters she did not take into account in making the s 232 Direction and in considering the exercise of the s 235(1) Discretion.
The plaintiffs characterise the evidence of the second defendant as providing ‘some insight into the matters she took into account and the advice she took before making the direction’.[61] In oral submissions, this was described as ‘a little bit of an insight’.[62] The plaintiffs submit that absent evidence on oath that there is nothing else to which she had regard, they cannot be satisfied that the second defendant has given a complete account. They submit this justifies their discovery request and if there is nothing else to discover, that can be attested to. I consider there are two problems with this reasoning.
(a) First, there is no evidence relied upon by the plaintiffs to demonstrate that there is any omission in the second defendant’s account of what she had before her and what she has had regard to. It has not been suggested by the plaintiffs that there are specific documents missing from Ms Waddington’s evidence. The plaintiffs lack credible evidence to justify the exercise of the Court’s discretion to order discovery in order to provide an assurance of completeness.
(b) Second, the plaintiffs submit that they have targeted their request for discovery to the documents containing the ‘information that the second defendant had access to before making the [s 232 Direction] and her subsequent deliberations’.[63] However, the terms of the categories of the requested discovery are extremely broad, travelling well beyond the documents actually before the decision-maker. The categories set out in the summons call for all communications, unlimited as to time, between the defendants concerning the entry of MF III or MF IV into the waters of the Port of Apollo Bay, regardless of whether such documents were before the second defendant as decision maker. They also call for all communications regarding the making of the s 232 Direction and ‘deliberations in relation to [its] possible revocation’.[64] The categories also seek ‘[d]eliberations and assessments undertaken by the defendants (individually or jointly)’.[65] Under this category, the plaintiffs seek any deliberation or assessment undertaken by the first defendant, whether or not ever seen by, let alone having been considered by, the second defendant who made the relevant decision. In oral submissions, the plaintiffs submitted that they sought all documents that the second defendant had ‘at her disposal’.[66] The words ‘at her disposal’ encapsulates the breadth of the request. I accept the defendants’ submission that the plaintiffs would gain nothing by examining documents that were not before the second defendant and played no part in her decision-making.
[61]Plaintiffs’ Reply Submissions filed on 17 July 2024, [10].
[62]Transcript T6.24–T6.25.
[63]Plaintiffs’ Submissions filed on 24 June 2024, [23].
[64]Plaintiffs’ Summons filed on 7 May 2024.
[65]Plaintiffs’ Summons filed on 7 May 2024 (emphasis added).
[66]Transcript T6.26.
In their reply submissions, the plaintiffs make the bare assertion that the documents sought ‘will assist the plaintiffs and the Court understand the matters [that the second defendant] took into account’.[67] A mere assertion that a document or documents will assist the applicant in proof of its case ‘will not, by itself, be sufficient.’[68] What the plaintiffs have failed to do, in their AOM and submissions on this application, is to identify the issues in this proceeding, proof of which will be assisted by the making of the orders for discovery which they seek. Their failure to do so means the Court is not persuaded that this case is an appropriate one in which to exercise the discretion to order discovery.
[67]Plaintiffs’ Reply Submissions filed on 17 July 2024, [10].
[68]Kangaroos Inc [23].
The AOM identifies, on page 3, the relief sought by the plaintiffs. The grounds upon which that relief is sought are set out in paragraphs 1 to 5 on page 4 of the AOM. Those grounds represent the full extent of the particularisation of the plaintiffs’ case for judicial review. The ground in paragraph 1 is an irrelevant considerations ground, positing that the second defendant considered matters irrelevant to the power to make the [s 232 Direction] such that it is invalid. Determination on this ground will require statutory construction to identify what matters were prohibited considerations. There is no particularisation by the plaintiffs at all as to what prohibited matters were taken into account or how they came to be taken into account, such as by the decision-maker asking the wrong question or applying the wrong test.
The ground in paragraph 4 is a natural justice ground – being that the second defendant breached the rules of natural justice by failing to provide any or sufficient particulars to the plaintiff of the matters required to be taken into consideration in accordance with s 232(2) of the MSA before making any direction. The defendants submit that the determination of the ground in paragraph 4 will not depend on any discovery. They submit that the second defendant has given evidence about the opportunity she afforded to the first plaintiff to provide her with material and she gives further evidence about the materials the first plaintiff provided in response to her request. There was no argument made by the plaintiffs to the contrary, and no suggestion that the determination of this ground would require more.
The grounds in paragraphs 2, 3 and 5 are all failure to consider relevant matters grounds, that is, the second defendant did not take into account ‘information provided by the first plaintiff’ or ‘otherwise available’ to her as required. Determination on these grounds will require, broadly, a comparison of the matters the second defendant did take into account against the matters that the powers she was exercising required her to take into account. The defendants submit that the second defendant has, on oath, already identified what she has taken into account, and that the plaintiffs and the Court can infer from that evidence what was not taken into account. There is no particularisation in the AOM of the matters that the second defendant is said to have failed to take into account, even in respect of the ‘information’ it is asserted was provided by the first plaintiff to the second defendant which must already be capable of identification. Absent sufficient particulars in the AOM and absent identification in the plaintiffs’ submissions of how the documents sought on discovery will assist the plaintiffs in proving facts to substantiate their claims, the request for discovery is revealed as speculative. For example, the plaintiffs have not identified how they will be assisted in proving their case on the grounds in paragraphs 2, 3 and 5 of the AOM by having access to all communications between the defendants concerning the entry of the MF III and MF IV into the waters of the Port of Apollo Bay.
It is the plaintiffs’ lack of particularisation of the grounds on which the relief is sought in the proceeding, as set out in the AOM, which exposes their discovery request as a speculative search for documents that may assist their case. The grounds reveal no more than that the case is about the asserted actions and inactions of the second defendant who has already given evidence about her process and the information she considered within that process, which is not the subject of credible challenge. There is insufficient definition of the issues in the proceeding beyond this to assist the Court to see how the documents the plaintiffs seek on discovery will assist in proof of a live issue between the parties. The grounds set out in the AOM do not rise above mere assertion and they do not obviously raise any question in respect of which the Court would be required to assume any fact finding role, which might otherwise justify discovery.[69] The plaintiffs’ explanation for seeking discovery, comprising not more than the bare assertion that the documents are relevant and will assist the Court and the plaintiffs to understand the matters the second defendant took into account does not advance matters. In all, the plaintiffs’ failure makes it impossible to answer, in the affirmative, the question posed in Kangaroos Inc – is there evidence to ground a suspicion that the plaintiffs have a good case which will be assisted by discovery.
[69]Moreland City Council 158 [13].
No other justification for the discovery orders sought, under the CPA or otherwise, was advanced before me.
For the foregoing reasons, I will not make orders requiring discovery by the first or the second defendant.
Disposition of the Plaintiffs’ summons
I dismiss the plaintiffs’ summons. The plaintiffs must pay the defendants’ costs of and incidental to the summons.
SCHEDULE OF PARTIES
| S ECI 2024 00285 | |
| BETWEEN: | |
| BASS STRAIT FREIGHT PTY LTD (ACN 652 909 558) | First Plaintiff |
| MARINE FREIGHT HOLDING PTY LTD (ACN 652 886 756) | Second Plaintiff |
| - v - | |
| COLAC OTWAY SHIRE COUNCIL | First Defendant |
| FIONA WADDINGTON | Second Defendant |
0
10
0