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

No. VG 202 of 1991

BETWEEN a

LA m

Applicant

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OF - N O - P A

Respondent

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Respondent

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Respondent

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Respondent

8

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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

CaseChat Overview and Summary

This matter involves an application by the applicant, La Roche, against the respondent, Cormack, who is the Convenor of the Promotion Appeal Committee. The applicant seeks relief based on alleged breaches of natural justice and procedural errors in the decision-making process. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the applicant was entitled to an order for discovery of documents and whether the applicant's application was essentially one for summary judgment. The court had to determine if the applicant's claims were such that they would inherently prevent the existence of relevant documents or if the applicant's application could be considered a motion for summary judgment.

The court examined the nature of the applicant's claims, which included allegations of breaches of natural justice, improper exercise of power, errors of law, and lack of evidence to justify the decision. The court found that these claims were not inherently such that no relevant documents could exist. The court also rejected the notion that the application was a summary judgment motion, noting that the applicant's grounds for relief were substantive and not merely procedural. The court concluded that the applicant's allegations warranted a full examination of the relevant documents and facts.

In its ruling, the court allowed the substitution of the Commissioner of Taxation as a party but declined to make the orders sought by the applicant regarding discovery and summary judgment. The court granted a further short period for compliance with the notice for discovery and directed the respondents to file and serve an affidavit of documents by a specified date. The court also set a date for the hearing of the matter, emphasising the need for an early resolution to ensure the case's practical effect. The court made no order as to costs.

The court's decision highlights the distinction between summary judgment motions and applications for substantive relief based on procedural and natural justice grounds. It underscores the importance of a full examination of relevant documents and facts when substantive issues of administrative law and procedural fairness are at stake.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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

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.

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