La Roche, P.R. v Cormack, J. (Convenor of the Promotion Appeal Committee)

[1991] FCA 730

No. VG 202 of 1991

BETWEEN a

LA m

Applicant

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OF - N O - P A

Respondent

- and -

Respondent

- and -

Respondent

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Respondent

8	-	Heerey J. Melbourne
Rim:	1 November 1991

. . . . .

I will make the order substituting the Commissioner of

Taxation a6 a party, but otherwise I decline to make the	..
orders sought.	It is plain that although there may be much

room for argument as to the availability of the remedy which
Mr La Roche seeks, nevertheless this is not an application for

summary judgment. Looking at the grounds of his application, that is, that there has been a breach of the rules of natural justice, that the making of the decision was an improper exercise of the power conferred by the enactment, that the decision involved an error of law and that there was no evidence or other material to justify the making of the decisions, it could not be said that it would be inherently impossible or unlikely that there would be no document relevant to the making out of those grounds.

A ~ I I read 0.15 rr.2 and 3, the prima facie position is that a

party given the notice has to make discovery. The onus is on the party who seeks to avoid that obligation to make out a case why there should not be discovery. It seems to me this case is essentially different from the kind of case where there was a challenge to the delivery of a statutory notice of inquiry such as was dealt with in Ravine Ptv Ltd v The

ssioner of Taxation (1985) 6 PCR 356 at p.365,

per Northrop J.

Complaints of the sort alleged by the applicant do not occur in a vacuum. There may well be documents that bear on the

questions that he has raised, and I am not persuaded that the	prima facie right to discovery should not be exercisable by
him.
The time for compliance with the notice has already expired.
I assume that since the- case has had some degree of
preparation the relevant file and documents must have been made available to the respondents and their advisors so I will order a further short time for compliance with that notice, that is to say, another 7 days. I will direct that the respondents file and serve an affidavit of documents on or before 8 Nwembar. If this matter is to have any practical effact it will need an early hearing.
I will direct that the case be fixed for hearing with an estimate of one day some time after 8 November.
I will make no order as to costs.

I certify that this and the

preceding two (2) pages are a true copy of the Reasons for Judgment of the Honourable Mr Justice Heerey

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The Applicant appeared on his own behalf.

Counsel for the Respondenter	Mr T J Ginnane
Solicitors for the Respondents:	Australian Government Solicitor