Meteorological Service of New Zealand v Director of Meteorology

[1995] FCA 657

CATCHWORDS

PRACTICE AND PROCEDURE - Discovery - Order not to be made unless necessary at time made - Meaning of "necessary" - Fishing.
Federal Court Rules, Order 15, r.15

Australian Securities Commission v. Somerville (1994) 128 ALR 132
Mulley v. Manifold (1959) 103 CLR 341
Trade Practices Commission v. C C (New South Wales) Pty Ltd (unreported: judgment delivered 2 August 1995)
Boyle v. Downs [1979] 1 NSWLR 192
Percy v. General Motors-Holden's Pty Ltd [1975] 1 NSWLR 289
The Commonwealth v. Northern Land Council (1993) 176 CLR 604
W A Pines Pty Ltd v. Bannerman (1980) 41 FLR 175
Bradley v. The Commonwealth (1973) 128 CLR 557
John Fairfax Ltd v. Australian Postal Commission [1977] 2 NSWLR 124

METEOROLOGICAL SERVICE OF NEW ZEALAND v 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); COMMONWEALTH BUREAU OF METEOROLOGY; COMMONWEALTH OF AUSTRALIA VG 534 of 1995

COURT:Sundberg J

PLACE:Melbourne

DATE:21 August 1995

IN THE FEDERAL COURT OF AUSTRALIA      )

VICTORIA DISTRICT REGISTRY  )          No VG 534 of 1995

GENERAL DIVISION  )

BETWEEN: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

COMMONWEALTH BUREAU OF METEOROLOGY

Second Respondent

COMMONWEALTH OF AUSTRALIA

Third Respondent

COURT:Sundberg J

DATE:21 August 1995

PLACE:Melbourne

MINUTES OF ORDER

The Court orders that:

1. By 4.00 p.m. on 4 September 1995 the first and second respondents file and serve a list of discoverable documents relating to:

(a)the failure or refusal by the first respondent to make the decisions referred to in paragraphs A (a), (b) and (c) of the applicant's application for order of review;

(b)each of the decisions referred to in paragraphs B, C and D of the applicant's application for order of review; and

(c)"the public interest considerations" referred to in paragraph 23 of the respondents' Contentions of Fact and Law dated 2 August 1995.

1. By 4.00 p.m. on 11 September 1995 the first and second respondents make available for inspection by the applicant the documents referred to in their list of documents.

1. The respondents have liberty to apply with respect to the filing and serving of the list of discoverable documents in so far as it relates to "the public interest considerations" referred to at 1(c) above.

1. Costs 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  )

BETWEEN: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

COMMONWEALTH BUREAU OF METEOROLOGY

Second Respondent

COMMONWEALTH OF AUSTRALIA

Third Respondent

COURT:Sundberg J

DATE:21 August 1995

PLACE:Melbourne

REASONS FOR JUDGMENT

SUNDBERG J:
The second respondent, Commonwealth Bureau of Meteorology, is established by the Meteorology Act 1955 ("the Act"). Its functions are set out in s.6(1) of the Act, and include the taking and recording of meteorological observations, the forecasting of weather, the

supply of meteorological information, the publication of meteorological reports, and co-operation with authorities administering the meteorological services of other countries.  Sub-section (2) provides in part:

The Bureau shall perform its functions under this Act in the public interest generally and in particular -

...

(c)for the purpose of assisting persons and authorities engaged in primary production, industry, trade and commerce.

The first respondent is the Director of the Bureau.  The applicant is the successor of the New Zealand Meteorology Service, a New Zealand Government Department the functions of which included the supply of meteorological information in New Zealand.  Under contract with the Minister of Transport the applicant administers the meteorological service of and for New Zealand.  It is empowered pursuant to the State Owned Enterprises Act 1986 (N.Z.) to engage in trade and commerce with the objective of operating a successful business in the delivery of weather information and related services in New Zealand and other countries, and it does so.

On 22 December 1994 the applicant requested the Director to supply to it certain meteorological information, namely forecasts, observational data and maps and charts.  The Director did not supply the information.  It is not clear whether he refused to supply it or deferred deciding whether to supply it.

In a document dated 11 April 1995 the Director provided the applicant with his reasons for "action taken in response to" the applicant's request for access to the Bureau's products.  The reasons included a statement that the applicant's 22 December 1994 request followed oral proposals by the applicant's director, Mr. Lumsden, that the parties should collaborate in the commercial packaging of Bureau services for Australian newspapers.  The Director says that the offers had been declined on the grounds that:

•Such an arrangement would not be in the public interest in that it would prejudice the present highly effective Bureau-media partnership in development and delivery of weather services to the Australian community in line with the Bureau's responsibilities under the Meteorology Act and Government decisions on the funding of public weather services.

•An arrangement in which one country's National Meteorological Service (NMS) was seen to be obtaining commercial revenue at the expense of the public recognition and/or financial support which another country's NMS would expect to achieve from its own citizens would be highly destabilising to the international data exchange regime on which meteorological services in all countries depend.

The Director then stated that on receipt of the applicant's request of 22 December he again explained to Mr. Lumsden that "the action he proposes would be counter to the public interest in the provision of meteorology infrastructure and services in Australia".  He went on to particularise the "international" and "domestic" reasons that supported his course of action.  The document concluded by stating

I believe I have at all times made clear that I have not taken, and would not take, any decision to refuse MetService Ltd. access to any Australian data for purposes that would be consistent with
the future stability of international meteorology or the public interest provision of meteorological services in Australia.

On 9 May 1995 the applicant filed an "application for order of review and other orders".  The first review sought (paragraph A) is of the failure and/or refusal by the respondents to

(a)make a decision in respect of the supply to the applicant of the meteorological information described in the applicant's letter dated 22 December 1994 to the first respondent (the "required meteorological information");

(b)make a decision to supply to the applicant the required meteorological information; and/or

(c)supply the required meteorological information to the applicant.

The relief claimed is a declaration that the respondents are obliged to make a decision in terms of (a) and/or (b) and to supply the information as in (c), and orders that they do so.

The second review sought (paragraph B) is of

the decision (the "first-mentioned decision") of the respondents to neglect, fail and/or refuse to make a decision or determination in respect of the supply to the applicant of the meteorological information described in the applicant's letter dated 22 December 1994 ....

The relief claimed is a declaration that the respondents are not entitled to neglect etc. to refuse to make the decision, and an order that they

(a)make a decision in respect of the supply to the applicant of the meteorological information described in the applicant's letter to the second respondent dated 22 December 1994;

(b)decide to supply to the applicant the meteorological information described in the applicant's letter to the second respondent dated 22 December 1994;

(c)supply to the applicant the meteorological information described in the applicant's letter to the second respondent dated 22 December 1994.

The third review sought (paragraph C) is of

the decision (the "second-mentioned decision") of the respondents to neglect, fail and/or refuse to supply the applicant with the meteorological information described in the applicant's letter dated 22 December 1994 ....

The relief claimed is a declaration that the respondents are not entitled to

(a)decide to neglect, fail and/or refuse to supply to the applicant the meteorological information described in the applicant's letter to the second respondent dated 22 December 1994;

(b)neglect, fail and/or refuse to supply to the applicant the meteorological information described in the applicant's letter to the second respondent dated 22 December 1994,

and an order that they decide to supply the information and supply it.

The fourth review sought (paragraph D) is of the respondents' refusal to provide reasons for their decision to refuse to make a decision or determination in respect of the supply to the
applicant of the meteorological information described in the letter and/or to refuse to supply the applicant with the required meteorological information.

In the case of each review the relief includes a claim for damages.  The Application concludes by stating that the relief claimed is sought under the Administrative Decisions (Judicial Review) Act 1977, s.39B of the Judiciary Act 1903 "and in reliance on the rights of the applicant in law (including its private law rights)".

The parties exchanged Contentions of Fact and Law.  The applicant's Contentions include these paragraphs:

24.Pursuant to ss.6 and 7 of the Act, the first, second and/or third respondents owe duties to MetService to carry out the functions of the Bureau as prescribed by s.6 of the Act.

25.The said duties are owed to MetService:

(a)in its capacity as a person or authority engaged in trade or commerce; and/or

(b)in its capacity as the authority administering the Meteorology Service of New Zealand.

26.The said duties owed to MetService are private duties enforceable at the suit of MetService.

...

29.The supply by the respondents to MetService of the required meteorological information:

(a)is in the public interest generally;

(b)is for the purpose of assisting persons and authorities (including the applicant itself) engaged in primary production, industry, trade and commerce;

(c)constitutes co-operation with the authority administering the Meteorological Service of New Zealand in relation to the matters set out in s.6(1) of the Act.

The private law rights referred to are rights said to be derived directly from s.6(2) of the Act. Cf. Bradley v. The Commonwealth (1973) 128 C.L.R. 557, at p.593 and John Fairfax Ltd. v. Australian Postal Commission [1977] 2 N.S.W.L.R. 124, at pp.131-132.

Two paragraphs of the respondents' Contentions are relevant for present purposes:

23.They object to responding to paragraph 23 upon the ground that it is embarrassing and tendentious.  Under cover of that objection, they refer to correspondence from the Bureau to MetService dated 16 December 1994 (exhibit "JRL-9"), 25 January 1995 (exhibit "JRL-11"), 6 March 1995 (exhibit "JRL-15") and 12 April 1995 and the attached statement of reasons (exhibit "JRL-24") insofar as those letters and that attachment refer to the public interest considerations raised by the proposals of MetService.

...

39.Nothing done or omitted by the respondents (or any of them) as alleged amounted to -

(a)the making of a decision;

(b)the making of a decision under enactment;

(c)the making of a decision of an administrative character,

within the meaning of the ADJR Act.

The attached statement of reasons referred to in paragraph 23 is the 11 April 1995 document.

By reference to draft Minutes the applicants have sought an order that the Director and the Bureau file and serve a list of discoverable documents relating to:

(a)the failure or refusal by the first respondent to make the decisions referred to in paragraphs A (a), (b) and (c) of the applicant's application for order of review;

(b)each of the decisions referred to in paragraphs B, C and D of the applicant's application for order of review; and

(c)the respondents' refusal to provide reasons for their decisions referred to in paragraph D of the applicants application for order of review;

(d)the first respondent's "reasons for action" (being exhibit "JRL 24" to the affidavit of John Robert Lumsden sworn 1 June 1995);

(e)"the public interest considerations" referred to in paragraph 23 of the respondents' contentions of facts and law dated 2 August 1995;

(f)the allegations in paragraph 39 of the respondents' contentions of facts and law dated 2 August 1995 that nothing done or omitted to be done by the respondents (or any of them) amounted to

(i)the making of a decision;

(ii)the making of a decision under an enactment;

(iii)the making of a decision of an administrative character,

within the meaning of the ADJR Act.

The exhibit referred to in paragraph (d) is the 11 April 1995 document.

The Respondents have opposed the making of an order.  Directing their submissions to O.15 r.15 they contend that it is not "necessary" that such an order be made because the primary facts are not in dispute, and all that remains are issues of law.  It was submitted that public interest considerations were irrelevant to the case, because it was not for the Court to decide whether it was in the public interest for the applicant to see the documents.  It was said that the Court does not substitute its view on public interest for that of the decision-maker, whose decision can be reviewed on the usual review grounds.  It was also submitted that it was
clear from the documents that had passed between the parties (which were exhibits to Mr. Lumsden's affidavit) what the Director had done or omitted to do, and that to ask for more documents was a fishing expedition and impermissible on that ground.

Until recently there was no authority on the meaning of "necessary" in O.15 r.15.  In The Commonwealth v. Northern Land Council (1991) 103 A.L.R. 267, at p.291 the Full Court, having set out rr.11, 13, 14 and 15, said

As appears later in these reasons dealing with the leading English cases upon the inspection and production of documents for which public interest immunity is claimed, the Federal Court Rules relevant to those topics are more liberal than the equivalent provisions of the Rules of the Supreme Court in England.  The same criterion of "necessity" governs orders for the filing or service of lists of documents as governs orders for their production.  It is a reflection of the policy of judicial case management that underlies the Federal Court Rules generally.  It is a broad criterion which requires consideration of the interests of justice in the particular case as well as its economic and efficient disposition.

In Trade Practices Commission v. C.C. (New South Wales) Pty. Ltd. (unreported: judgment delivered 2 August 1995) Lindgren  J. said that r.15 requires the Court to be satisfied that the order is necessary in the interests of a fair trial.  Part 24 sub-r.5(2) of the New South Wales Supreme Court Rules relating to interrogatories is in the same form as r.15.  In that context it has been held that the test is whether the order is "reasonably necessary for the disposing fairly of the case".  See Boyle v. Downs [1979] 1 N.S.W.L.R. 192, at p.205. And in a similar context in Pt 23 r.14 relating to discovery and inspection, "necessary" has
been held to mean "necessary in the interests of a fair trial".  See Percy v. General Motors-Holden's Pty. Ltd. [1975] 1 N.S.W.L.R. 289, at p.292.

Lindgren J. was of the view that the "interests of a fair trial" and the "fair disposition of a case" encompass the opening up of a train of enquiry of the kind referred to in the leading cases on discovery.  See for example Mulley v. Manifold (1959) 103 C.L.R. 341, at p.345. He considered that in a case such as the one before him, where one party and not the other was likely to have documents relating to a matter in question, it was prima facie "necessary" in the relevant sense that discovery be ordered, subject to the qualification that what was involved was not a fishing expedition.

For the moment I put to one side whether the discovery sought is "necessary", because the parties are in dispute about whether the discovery sought relates to issues of fact raised by the proceedings. The respondents' Contentions disclose that while their primary submission will be that the Act does not confer a private right on the applicant, their fall back position relies on the public interest considerations adverted to in the Director's letters and in the 11 April 1995 document. The applicant of course denies that those considerations or any public interest entitle the Bureau to decline to assist it to engage in trade and commerce. There is therefore an issue of fact relating to that topic. The respondents' submission that the public interest was not per se an issue relevant to the proceeding overlooks the dual way in which the applicant put its case. While in a public law context the public interest question may not be for the Court to decide, it is directly raised by the private cause of action said to be created by s.6(2).

The parties' Contentions also disclose that there is a dispute as to whether what was done or omitted to be done by the respondents amounted to the making of a decision.  In paragraph 39 of their Contentions the respondents say that what was done or omitted to be done did not amount to a decision.  Of course the applicant asserts the contrary.

In submitting that the correspondence that had passed between the parties disclosed what the Director had done or omitted to do, the respondents appear to me to be seeking to confine the ambit of the proceeding to what they say were the things done or omitted to be done by the Director.  What he admits to having done or not done is indeed contained in the exhibits to Mr. Lumsden's affidavit.  But the issue raised by the Application is not what the Director admits to having done or not done, but what he in fact did or omitted to do and whether that amounted to the making of a decision.

Accordingly, what decisions were in fact made by the Director is a central issue in the proceeding.

There are therefore issues of fact which prima facie justify discovery under paragraphs (a), (b) and (e) of the draft Minutes.  I do not consider that there are issues of fact which justify discovery under paragraph (f).  Paragraph 39 of the respondents' Contentions is a contention of law - whatever is shown to have been done or omitted to be done, it was not a decision.  As to paragraph (c), the respondents either made a decision so that the applicant was entitled to reasons, or they did not.  If there was a decision which entitled the applicant to reasons, the "reasons for action" were either adequate or were not.  If factual issues are raised which justify discovery under paragraph (c), they are covered by paragraphs (a) and (b) of the draft Minutes.  Otherwise the issues are questions of law.  Paragraph (d) of the draft Minutes overlaps with paragraphs (a), (b) and (e), and to the extent that it does, it relates to factual issues.

I now turn to whether the discovery sought in paragraphs (a), (b) and (e) is "necessary" in the interests of a fair trial.  Putting the exhibited correspondence to one side (because the applicant does not seek those documents), the discovery relates to documents which will be in the possession of the respondents alone.  In my view, a fair trial requires that the respondents discover documents relating to the "public interest" issue and to whether a decision was made by the respondents, unless the applicant's purpose in seeking them is to engage in a fishing expedition.  Cf. Trade Practices Commission v. C.C. (New South Wales) Pty. Ltd., supra.  A fair trial does not require that they discover documents relating to the matters in paragraph (d) of the draft Minutes in so far as it does not relate to issues covered by paragraphs (a), (b) and (e).  In so far as it does relate to those issues, it would be covered by discovery under paragraph (a), (b) and (e).

A fishing expedition in a discovery context is where the discovery is sought in order to ascertain whether the applicant has a case, as opposed to bolstering a case which is already supported by some evidence.  See W.A. Pines Pty. Ltd. v. Bannerman (1980) 41 F.L.R. 175, at p.181; Australian Securities Commission v. Somerville (1994) 128 A.L.R. 132, at pp.142-143; Trade Practices Commission v. C.C. (New South Wales), supra.  In the material already before the Court (especially in Mr. Lumsden's affidavit) there is some evidence suggesting that the applicant has a case that the respondents have failed to make the decisions complained of in the Application, bearing in mind that review under the
Administrative Decisions (Judicial Review) Act extends to failure to make a decision as well as to actual decisions.  Accordingly, I do not think the applicant is engaged in a fishing expedition.

I propose to make an order in terms of paragraphs (a), (b), and (e) of the draft Minutes.  Although I have held that the applicant is entitled to some of the discovery sought, it asked for too much, and I propose to reserve the costs, so that under O.62 r.15 they will follow the event unless the Court otherwise orders.

I certify that this and the preceding 12 pages are a true copy of the reasons for judgment of the Honourable Justice Sundberg

........ ........ ........ ........ ........ ........ .....

Associate

21 August 1995

Counsel for the Applicant:  R Merkel QC and M Garner

Solicitors for the Applicant:  Arnold Bloch Leibler

Counsel for the Respondent:  D J Habersberger QC and A Cavanough

Solicitors for the Respondent:  Australian Government Solicitor

Date of Hearing:  3 August 1995

Place of Hearing:  Melbourne

Date of Judgment:  21 August 1995