Meteorological Service of New Zealand Ltd v Director of Meteorology
[1996] FCA 497
•21 JUNE 1996
CATCHWORDS
PRACTICE AND PROCEDURE - application for leave to appeal -
order for discovery allegedly burdensome - discovery voluntarily discontinued by parties - suggested directions for future conduct of case.
METEOROLOGICAL SERVICE OF NEW ZEALAND LIMITED v. DIRECTOR OF METEOROLOGY and COMMONWEALTH BUREAU OF METEOROLOGY and COMMONWEALTH OF AUSTRALIA
VG534 of 1995
Jenkinson, Olney and Heerey JJ.
Melbourne
21 June, 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No. VG 534 of 1995
)
GENERAL DIVISION )
B E T W E E N:
METEOROLOGICAL SERVICE OF NEW ZEALAND LIMITED
Applicant
- and -
DIRECTOR OF METEOROLOGY (Who is sued on his
own behalf and as representing the members as
at the date of the issue of these proceedings
of the Commonwealth Bureau of Meteorology)
First Respondent - and -
COMMONWEALTH BUREAU OF METEOROLOGY
Second Respondent
- and -
COMMONWEALTH OF AUSTRALIA
Third Respondent
CORAM: Jenkinson, Olney and Heerey JJ.
PLACE: Melbourne
DATE: 21 June 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application for leave to appeal be dismissed.
Each party's costs of the said application be reserved.
(Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules)
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No. VG 534 of 1995
)
GENERAL DIVISION )
B E T W E E N
METEOROLOGICAL SERVICE OF NEW ZEALAND LIMITED
Applicant
- and -
DIRECTOR OF METEOROLOGY (Who is sued on his
own behalf and as representing the members as
at the date of the issue of these proceedings
of the Commonwealth Bureau of Meteorology)
First Respondent
- and -
COMMONWEALTH BUREAU OF METEOROLOGY
Second Respondent
- and -
COMMONWEALTH OF AUSTRALIA
Third Respondent
CORAM: Jenkinson, Olney and Heerey JJ.
PLACE: Melbourne
DATE: 21 June, 1996
REASONS FOR JUDGMENT
THE COURT
We do not consider this an appropriate case for leave. After correspondence between the parties last December the position reached, in substance, was that the applicant would not pursue any further discovery. Whatever may have been the qualifications or reservations contained in that correspondence, in the hearing before us senior counsel for the applicant confirmed in unequivocal terms that no further discovery will be sought. Therefore, the essential complaint of injustice made by the respondents, that is to say the burdensome nature of the discovery sought, falls away. The work that the respondents have already done cannot be undone. The respondents will recover the costs of such discovery if they are ultimately successful. Indeed, if the actual conduct of the trial shows such discovery to have been unnecessary, it would be open to the trial judge to order the applicant to pay the respondents' costs in connection with such discovery, even if the applicant succeeds on the substantive issues. The authorities which stress the restraints operating on appellate courts in appeals against interlocutory matters of practice and procedure are too well known to need citing. They apply to the present case where the reality is that all that is left is an argument about costs.
As senior counsel for the respondents noted, the issue of discovery has rather taken over the progress of the case. In an effort to get the case back on track we think it appropriate to advance some suggestions for the consideration of the parties.
We understand the reluctance of the Bureau, in the light of sensitivity about the forthcoming World Meteorological Congress then due to be held in May/June 1995, to commit itself to a definitive response to the applicant's request. Hence the Director's document dated 11 April 1995 which is carefully described as "Reasons for Action Taken in Response to NZ Metservice Limited's Request for Access to Bureau of Meteorology Service Products". Now that the Congress has in fact taken place, and assuming that the Bureau continues to be not favourably disposed to the applicant's request, consideration might be given to a formal refusal. If that were to occur, it would not prejudice any possible argument that the refusal was not, as a matter of law, a "decision" to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) applied. However it would remove from the case the rather sterile and confusing disputes as to whether there had been a "failure" to decide or a "decision" to refuse.
In the course of the hearing of the application, there was some mention of the possibility of the trial of a separate issue under O 29. Such issues might include the question of the application of the "public interest" requirement of s 6(2) of the Meteorology Act 1955 (Cth) or whether "trade or commerce" in s 6(2) comprehends the applicant's trade of providing meteorological information for reward.
However, now that the discovery process is to be regarded as complete, the extent of evidence (if any) to be called at the trial may be capable of prediction and reasonable limitation to a much greater degree than was previously thought. It may be therefore that the whole case can be set down for trial.
The applicant needs to give some serious consideration to para 23 of its Statement of Facts and Contentions, which in its present form states:
23.The presentation of weather and related information in the enhanced form has never been said, and cannot be said, to be anything other than in the public interest.
Is this to be taken literally as an assertion that nobody, ever, anywhere in the world, has said that presentation in the enhanced form of weather information (presumably in Australia) is not in the public interest (presumably of Australia and Australians)? If so, it is demonstrably untrue because the Director has said just that. Is it to be taken as an assertion that the public interest in such presentation is so clear as to be a matter of which an Australian court should take judicial notice? Or is it a mere rhetorical flourish? The form of para 23, and the response it elicited from the respondents, seem to have contributed in no small way to the burgeoning of discovery to a point where the parties now agree a halt should be called.
In any event we think it desirable that the parties agree on an early directions hearing. Since we have become apprised of the detail of the case, any member of this bench would be willing to conduct such a hearing; alternatively an approach could be made to Sundberg J.
The application for leave to appeal is dismissed. The costs will be reserved.
I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment of their Honours Justices Jenkinson, Olney and Heerey.
Dated: 21 June, 1996
Associate
Appearances
Counsel for the applicant: Mr J E Middleton QC with Mr M Garner
Solicitor for the applicant: Arnold Bloch Leibler
Counsel for the respondent: Dr C N Jessup QC with Mr A Cavanagh
Solicitor for the respondent: Australian Government Solicitor
Date of hearing: 6 June 1996
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