Russell v Abbey (Ruling No 2)
[2018] VSC 260
•22 May 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 00005
| JOHN (JACK) RUSSELL | Plaintiff |
| v | |
| MARGARET ABBEY | First Defendant |
| MURUNDINDI SHIRE COUNCIL | Second Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 April 2018 |
DATE OF RULING: | 22 May 2018 |
CASE MAY BE CITED AS: | Russell v Abbey (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 260 |
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JUDICIAL REVIEW AND APPEAL — Discovery — Application for discovery in judicial review proceeding — Supreme Court (General Civil Procedure) Rules 2015 rr 29.01, 29.01.1, 29.07 —Civil Procedure Act 2010 s 54 — Australian Society for Kangaroos Inc. v Secretary, Department of Environment, Land, Water and Planning [2018] VSC 88 — Moreland City Council v Minister for Planning [2014] VSC 468 — Application dismissed — Interrogatories — Application for interrogatories in judicial review proceeding — Supreme Court (General Civil Procedure) Rules 2015 O 30 — Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff appeared in person | ||
| For the Defendant | Mr I Munt |
HER HONOUR:
The plaintiff, Mr Russell, seeks interrogatories and discovery.[1] He wishes to interrogate seven non-parties to this proceeding, and Ms Abbey, the first defendant. Some of the non-parties are employees of the second defendant, Murrindindi Shire Council (‘Council’). Others are not. Mr Russell also seeks wide-ranging discovery orders. There is no discovery as of right in a proceeding such as this, namely an application for judicial review. Mr Russell seeks that the Court exercise its discretion to discovery. This ruling concerns whether or not orders for interrogatories and discovery should be made.
[1]By way of summons filed on 22 February 2018.
The questions for determination in this proceeding are as follows:
1. Should orders be made to enable Mr Russell to obtain interrogatories directed at eight persons?
2. Should orders for discovery be made?
The orders sought in Mr Russell’s summons are as follows:
I seek an Order to enable written Interrogatories and of Discovery, from Ms Abbey-First Defendant as being, but not limited to the following:
All evidence in support of the Extension of the Ban-Rules 29.03 and 29.02. [sic]
Mr Russell has filed a flotilla of affidavit material. He is self‑represented. Much of his affidavit material is not in admissible form as it contains opinions. He is self‑represented, however, and accordingly I have read such material and considered it in the nature of submissions. Indeed, one of his affidavits is titled ‘Further affidavit for outline of submissions’.[2]
[2]Affidavit filed on 22 February 2018.
Letter of 13 April 2017
Mr Russell seeks judicial review of a decision banning him from entry to Council facilities for 12 months: he is not permitted to enter Council building and facilities, nor attend Council events or meetings during that period (‘the decision’). The decision was communicated to Mr Russell in a letter dated 13 April 2017 from Ms Margaret Abbey, Chief Executive Officer of Council.
The decision the subject of judicial review is contained in the following letter to Mr Russell from Ms Abbey (‘the letter’).
Dear Mr Russell,
Re:Review of Withdrawal of Licence (Ban from Accessing Murrindindi Shire Council Facilities)
I refer to my letter of 18 April 2016 and the numerous pieces of correspondence since this date confirming the conditions that relate to your withdrawal of licence from Council facilities, events and meetings.
I am now writing to you to advise I have reviewed the conditions relating to your withdrawal of licence that has been in place for the last 12 months. I have determined that your licence to enter the Council building and facilities as previously advised to your remains withdrawn for the next 12 months, from 18 April 2017.
This means that you remain banned from entering Council buildings and facilities and from attending any Council events or meetings for twelve months, unless expressly invited to do so by myself.
My decision to continue your ban from entering Council facilities and attending Council events results from your unacceptable behaviour when you assaulted a member of Council staff and committed trespass on Council property. These events, of 14 April 2016 at the Yea Library, have been confirmed during the criminal proceedings undertaken at Seymour Magistrates Court, and via the interim Personal Safety Intervention Order that remains in force against you for your actions against a member of Council staff.
Another condition of your withdrawal of licence as stated in my correspondence to you on 18 April 2016, was the requirement of you to seek permission in writing from me, and addressing all of the following criteria, should you wish to return to a Council facility:
·reasons why the ban should be reconsidered;
·your recognition of your inappropriate behaviour; and
·your level of commitment to behaving in a respectful and civil manner to Council Staff.
In the last twelve months, you have not in any of your correspondence with Council, recognised the inappropriateness of your behaviour, nor have you provided any commitment to behave in a civil and respectful manner towards Council staff.
You have, however, in direct contravention of this ban:
·entered Council facilities on numerous occasions, for example attending the Alexandra Council office on 12 September 2016, 20 October 2016, 21 November 2016, 14 and 21 February 2017, 7 and 23 March 2017 and entering the Yea Council Chambers prior to the Council Meeting on 22 March 2017;
·continued to make inappropriate comments towards Council staff and Councillors, for example comments made regarding reception staff on 21 October 2016 and 23 March 2017; and
·not shown any remorse for your actions on 14 April 2016.
I again remind you that, during the period in which you are banned, if you enter a Council facility you will be committing a trespass and Council staff have been advised to call Victoria Police to remove you. In this event you may be charged by Victoria Police under the Summary Offences Act 1966.
In addition, any future threats or aggressive behaviour towards Councillors, Council staff or contractors of Council will not be tolerated and will be reported to the Police.
Council appreciates that a ban from all Council facilities may impact on your ability to transact legitamate (sic) business with Council. Accordingly all future communications with Council must be in writing and addressed to me as follows:
·Letters –
Margaret Abbey
Chief Executive Officer
Murrindindi Shire Council
PO Box 138ALEXANDRA VIC 3714
·Emails –
[email address]
As previously indicated, I will determine whether they require any action. If they do, I will either respond to them personally or refer them to another member of Council staff who is best placed to do so.
If you genuinely require an urgent response to a matter, you may contact Council via telephone on [telephone number]. If staff determine that the matter is not urgent, your request may not be addressed unless communicated in writing as per above.
All Councillors and Council staff have been advised of these arrangements. If they receive written communications from you, they will not read those communications, but will instead forward them directly to me. If you contact them by telephone, they are authorised to remind you of these arrangements and to terminate the telephone conversation.
If, during the period in which you are banned, you wish me to review the ban, you can request a review from me in writing, addressing all of the following criteria:
·reasons why the ban should be reconsidered;
·your recognition of the inappropriate behaviour; and
·your level of commitment to behaving in a respectful and civil manner to Council staff.
I will not consider, nor reply to, requests from you to attend particular Council facilities or events unless these criteria are addressed.
I will next review this matter in another 12 months. I trust this confirms Council’s position.
Yours faithfully,
Margaret Abbey
Chief Executive Officer
Both parties proceed on the basis that the letter above relates to a ban on 43 Council buildings and facilities. This is a result of the following. As stated in the letter above, this ban purported to continue an earlier ban on Mr Russell from entering Council properties and facilities; the earlier ban being communicated to him by letter dated 18 April 2016.[3] In relation to that earlier ban, and in response to Mr Russell’s correspondence, on 27 May 2016 Council wrote to Mr Russell identifying 43 Council buildings and facilities from which he was banned.[4]
[3]Exhibit ‘AGB-3’ to the affidavit of Andrew Gregory Bond, sworn 23 February 2018 (‘the Bond affidavit’).
[4]Exhibit ‘AGB-4’ to the Bond affidavit.
During the course of the hearing, and in response to questions by the Court, Mr Russell clarified the grounds in his originating motion (both the original and amended versions) upon which he seeks judicial review of the decision. Accordingly, for the purposes of considering this application, I consider that:
(a) the ground upon which Mr Russell sought judicial review was on the broad ground that neither the Council nor Ms Abbey had legal power to make the decision to ban him; and
(b) if Mr Russell was to succeed on that ground, he would be seeking an order in the nature of certiorari in respect of the decision
Turning now to the first question.
Should orders be made to enable Mr Russell to obtain interrogatories directed at eight persons?
Mr Russell seeks interrogatories directed to Ms Abbey, together with other employees of Council being Mr Bond, Ms Tull, Ms Pauline Roberts, and Ms Julie Blyth.
Mr Russell also seeks to interrogate Ms Lyndall Tait. On 21 March 2016, she made a complaint to Council regarding Mr Russell’s behaviour towards children during ‘story time’ in the Yea Library.[5]
[5]Exhibit ‘AGB-21’ to the Bond affidavit.
Mr Russell seeks to interrogate Council employee Ms Tull. On 28 April 2016, Ms Tull obtained an interim intervention order against Mr Russell.[6] On 14 November 2016, the Magistrates’ Court found Mr Russell guilty of assaulting Ms Tull and trespass at the Yea Library.
[6]Exhibit ‘AGB-25’ to the Bond affidavit.
Mr Russell seeks to interrogate Senior Constables Simon Eaton and Suzanne Harvey. They made the application for the intervention order.[7] Mr Russell’s exhibits include transcripts of hearings of criminal proceedings concerning him in the Magistrates’ Court and an appeal in the County Court of Victoria in which the senior constables are listed respectively as informants.
[7]Exhibits ‘AGB-25’ and ‘AGB-26’ to the Bond affidavit.
Mr Russell says that he seeks the interrogatories to make the trial process more expedient and time effective for the Court because it would avoid those people having to give evidence in person. He said that was principally the reason. He said that it would avoid them having to respond to subpoenas.
In his affidavit filed on 22 February 2018, Mr Russell indicated that he sought orders for the interrogatories, discovery and further and better particulars on the grounds that he alleged:
1.That, due to extraordinary circumstances & the fact that I will be disabled in Law should I be unable to examine the 1st defendant – Ms Abbey at the Hearing set for the 16th August 2018 being 2 Supreme Court proceedings, & that I seek the mercy of the Court & to obtain an Order for a further process – being Interrogatories Discovery & Further Better & Particulars & on the ground that: I alleged:-
(a)Ms Abbey acted independently & outside her scope of Authority & outlined in my Application for Judicial Review – Originating Motion and Subsequent Amendment & Affidavits
(b)Ms Abbey acted outside the Restrictions applied to her status as the then CEO of Council & as also detailed earlier.
(c)That copious documentation has been filed with my Originating Motion & for which I rely. [sic]
2.That due to the fact that Council have appointed a new CEO & as from the 9th January 2018 I enclose a copy of my ‘concerns’ & as dated the 19th February 2018 – as Exhibit I & for which I shall rely & as such details ground for Ms Abbey actioning the Extension (& the Initial) Bans placed upon myself & as the Decision Maker & which was not supported by Council ‘Resolution’ & therefore the lawful Defendant as being the ‘Decision Maker’ as Independent of Council’s jurisdiction, as the Local Authority and therefore to be only ‘Addressed’ by Ms Abbey. [sic]
3.That my Summary & Analysis of the Media Reporting of the ‘Orders’ of the Judicial Review Registrar & as dated the 19th February, is limited to facts of the Reporting & not as – redress for statements attributed to Ms Abbey & for which I contest on the basis of being Manufactured & Malicious & without unequivocal evidence – whatsoever, - although such is in fact, the basis & substance of my case against Ms Abbey (& Council). [sic]
…
5.That I also enclose my Affidavit in respect to inconsistencies in evidence given by Bond, Tull & Eaton & Abbey & as also extracts from Council Transcripts – attached, & that are concerned with procedural justice and etc & as Exhibit II & as Prima Facea Witness to perjury and i.e.:- Contempt of Court. [sic]
The further affidavit and outline of submissions filed on 5 March 2018 by Mr Russell is largely irrelevant to the issues. For instance, it details his opinions regarding the complaint by Ms Tait referred to above.
Mr Russell’s affidavit filed on 8 March 2018 also largely consists of opinion. He challenges the chronology given by Council in its submissions and Mr Bond’s affidavit. He makes wide ranging allegations in them, including against the police.
Mr Russell also filed an outline of submissions and then a substitute outline of submissions. I will address the substitute outline of submissions. It is addressed to Council’s decision to ban him. It responds to the then application by the defendants for summary dismissal (later not pursued). It challenges Mr Bond’s affidavit. It sets out what he says are further incidents concerning various people. It alleges ‘[t]hat the actions of the defendants & in chorus with the Police at Yea were perpetuated & designed as a recipe for ENTRAPMENTS & as an ‘Abuse of Process’ if so proven’.
As Mr Russell says, he has filed voluminous material. It is not necessary to recite it all. It has been considered.
Council says that interrogatories should not be ordered for the following reasons:
(a) Interrogatories may only be directed at a party. None of the people identified is a party;
(b) The application for interrogatories is purely speculative. He does not know what it is that the people he seeks to interrogate want to say. It is an archetypal fishing expedition. It would be oppressive.
(c) The background information to this proceeding given in the affidavit by its employee, Andrew Bond sworn on 23 February 2018 has been provided because the letter picks up many of these background issues. Accordingly, it does not matter to determination of the proceedings whether or not they are correct or not. The issue is what was in the mind of Council at the time the decision was made.
Analysis
Order 30 of the Supreme Court (General Civil Procedure) Rules 2015 provides:
30.01 Definitions
In this Order, unless the context or subject matter otherwise requires—
interrogating party means a party who serves interrogatories;
party interrogated means a party on whom interrogatories are served;
servant or agent, in relation to a corporation, includes officer and member.
30.02 When interrogatories allowed
(1)Subject to the other paragraphs of this Rule, any party may serve interrogatories on another party relating to any question between them in the proceeding.
(2)Where the pleadings between any parties are closed, interrogatories may be served without leave of the Court by any of those parties on any other of them.
(3)Where paragraph (2) does not apply, the Court may order that any party may serve interrogatories on any other party.
(4)By leave of the Court an interrogating party may serve further interrogatories.
(5)For the purpose of Rule 63.70, an interrogatory served without reasonable cause is work which is not necessary.
30.03 Statement as to who to answer
Where interrogatories are to be answered by two or more parties, the interrogating party shall state in the document containing the interrogatories which of them each party is required to answer.
30.04 Filing interrogatories and time for answers
Where interrogatories are served—
(a) the interrogating party shall forthwith file a copy;
(b)the party interrogated shall within 42 days after service answer by affidavit, file it an serve a copy on the interrogating party.
30.05 Source for answers to interrogatories
(1)A party interrogated shall answer each interrogatory insofar as it is not objectionable in accordance with the following provisions—
(a)the party shall answer from the party's own knowledge of the fact or matter which is inquired after by the interrogatory, and, if the party has no such knowledge, from any belief the party has as to that fact or matter;
(b)a party who has no knowledge of the fact or matter inquired after shall be taken not to have a belief as to the fact or matter—
(i)where the party has no information relating to the fact or matter on which to form a belief; or
(ii)where, if the party has such information, for reasonable cause the party has no belief that the information is true;
(c)except as provided by paragraph (d), the party shall answer from any belief the party has as to the fact or matter inquired after irrespective of the source of the information on which the belief is formed;
(d)the party shall not be required to answer from the party's belief as to any fact or matter where the belief is formed on information that was given to the party in a communication the contents of which the party could not, on the ground of privilege, be compelled to disclose;
(e)where the party has no personal knowledge of the fact or matter inquired after, the party shall, for the purpose of enabling the party to form a belief as to the fact or matter (so far as the party can), make all reasonable inquiries to determine—
(i)whether any person has knowledge of the fact or matter which was acquired by that person in the capacity of that party's servant or agent; and
(ii) if that is the case, what that knowledge is;
(f)the party shall make the inquiries referred to in paragraph (e) notwithstanding that at the time the party is required to answer the interrogatory any person having the relevant knowledge has ceased to be that person's servant or agent;
(g)where the party is a corporation, this Rule applies, with any necessary modification, as if—
(i)the person who answers the interrogatories on behalf of the corporation were that party; and
(ii)in particular, as if the reference in paragraph (e) to a servant or agent of the party were a reference to a servant or agent of the corporation.
(2)Where an interrogatory relates to a fact or matter alleged in the pleading of the party interrogated, nothing in paragraph (1)(d) shall affect the right of the interrogating party to obtain information as to that fact or matter pursuant to an application of the kind referred to in Rule 13.11.
…
30.07 Ground of objection to answer
(1)A party interrogated shall answer each interrogatory except to the extent that it may be objected to on any of the following grounds—
(a)the interrogatory does not relate to any question between the party and the interrogating party;
(b) the interrogatory is unclear or vague or is too wide;
(c) the interrogatory is oppressive;
(d)the interrogatory requires the party to express an opinion which the party is not qualified to give;
(e)privilege.
(2)Without limiting paragraph (1)(a), an interrogatory that does not relate to any question includes an interrogatory the sole purpose of which is to—
(a)impeach the credit of the party interrogated;
(b)enable the interrogating party to ascertain whether the party has a claim or defence other than that which the party has raised in the proceeding;
(c)enable the interrogating party to ascertain the evidence by which the party interrogated intends to prove the person's case, including the identity of witnesses.
…
30.08Who to answer interrogatories
(1)Interrogatories shall be answered—
(a)where the party interrogated is—
(i) a natural person, by the party;
…
(iii)a corporation, by an officer of the corporation or by any person duly authorised by it to answer; or
(b)by such person as the Court may direct.
(2)The answers of a person made in accordance with a direction given under paragraph (1)(b) shall be as effective and binding in all respects as if made by the party interrogated.
…
Order 30 is applicable to Mr Russell’s application for interrogatories. The effect of Order 30 is that his application cannot succeed for the following reasons.
First, interrogatories are not directed at parties: r 30.02(1). Only one of the persons to whom the interrogatories would be directed is currently a party: Ms Abbey. The effect of another ruling in this proceeding is that orders will be made to remove her as a party. However, even if Ms Abbey remained a party to the proceeding, it would be inconsistent with Order 30 to give leave for interrogatories directed at her, for reasons discussed further below.
For completeness, I accept that employees of Council may answer interrogatories directed at Council. However, what is being sought by Mr Russell is not interrogatories directed at Council, but rather certain employees directly. Even assuming that Mr Russell was intending to direct the interrogatories at Council, for the reasons below, it would be inconsistent with Order 30 to allow interrogatories.
Second, interrogatories must relate to a question between the parties in the proceeding: see r 30.02(1) and the corollary r 30.07(1)(a). Mr Russell has not established any such questions. There are no draft interrogatories provided.
Third, and importantly, this is a proceeding for judicial review. As discussed above, the question of law is whether or not Council acted beyond power in making the decision to ban Mr Russell. That Council made the decision is not in dispute between the parties. This is not a merits review of the decision. Thus Mr Russell’s contention that interrogatories would avoid the need for witnesses to give evidence misses the point. As a judicial review matter, it is most unlikely that there would be any witnesses called to give evidence at the trial.
Fourth, r 30.02(2) indicates that interrogatories relate to proceedings with pleadings. Judicial review proceedings do not fall within this category. However, r 30.02(3) provides that a Court may give leave to serve interrogatories for non-pleadings matters (including potentially judicial review). There would however need to be good reason to exercise that discretion. No good reason is identified to exercise the discretion against the presumption that there should not be interrogatories in judicial review proceedings.
Fifth, the effect of r 30.07(2)(a) is that if an interrogatory is for the sole purpose of impeaching the credit of the interrogated person, then that is not permitted. I mention this as Mr Russell’s material challenges the credit of some of the people who he seeks to interrogate. An example is paragraph 5 of his affidavit filed on 22 February 2018 and recited above.
Sixth, the effect of r 30.07(2)(c) is that if an interrogatory is for the sole purpose of ascertaining evidence to prove a party’s case, then it is not permitted. Mr Russell contends that he does need evidence to prove his case because Council has not provided it to him. Thus, the reference to this rule. However, it should be observed, as discussed above, that this is a judicial review proceeding, not a merits review.
In conclusion, an order for interrogatories would be inconsistent with Order 30. Further, given the voluminous material filed to date by Mr Russell, much of which is completely irrelevant to the issues in dispute in this proceeding, an order for interrogatories is likely to lead to the incurring of unnecessary costs and waste the time of the parties and the Court. Such an order would therefore be inconsistent with ss 7 and 9 of the Civil Procedure Act 2010 (‘CPA’). Section 7(1) provides the overarching purpose is the just, efficient, timely and cost-effective determination of the real issues in dispute. Section 9(1) of the CPA requires the Court to further the overarching purpose by having regard to a number of objects, including:
Court's powers to further the overarching purpose
(1)In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects—
(a) the just determination of the civil proceeding;
…
(c) the efficient conduct of the business of the court;
(d) the efficient use of judicial and administrative resources;
(e)minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for—
(i) the fair and just determination of the real issues in dispute; and
(ii) the preparation of the case for trial;
(f) the timely determination of the civil proceeding;
(g) dealing with a civil proceeding in a manner proportionate to—
(i)the complexity or importance of the issues in dispute; and
(ii) the amount in dispute.
Should orders for discovery be made?
A further outline of submissions filed by Mr Russell on 22 March 2018 indicated he required discovery ‘of a considerable number of documents to be produced for the benefit of the Court and also identified in the 35 Exhibits attached.’ He submits the following.
That also the Council is holding a considerable number of documents listed in their ‘Interaction Report’ as being held in my name & not least the account of 550 pages (sourced and/or created by Council) that are described @ 14/37485 as being ‘Confidential – Jack Russell – assessed internal emails – 550 pages relating to Mr Russell’ & etc. that I also seek to Discover.
That Council claim to own outright as fee simple, to 43 properties as property holdings & I seek to have production as Discovery of Council’s Property Register of those 43 properties.
That Council are requested to produce the detail of the authority given to Ms Abbey to make a decision to extend the ban of April 2016 & the subsequent further extension & the original ban itself & to produce Councils’ written ‘Council Resolution’ to act on Councils’ behalf as required by the law & as the Schedule @ 5 & 6 state.
That Council produce unequivocal written evidence of ‘the behaviour of myself’ from late 2014 & onwards as stated at 11 to 58 of Bond’s affidavit and likewise conduct of plaintiff at 64 to 90 of Bond’s affidavit.
That Council produce all my correspondence as rebuttals of each & every occasion where conduct claims & such as my ‘behaviour’ as were provided by Council by myself.
That Council produce the entire file held by Council as identified within the Interaction Report as exhibit 1 of Bond’s affidavit of 23rd February 2018.
Given the above, and Mr Russell’s oral submissions, although Mr Russell’s summons seeks discovery by Ms Abbey, I have also considered whether Council should be ordered to provide discovery.
Mr Russell’s oral submissions included the following.
(a) Everything will be turned against him unless there is strong evidence to support “his plea” that the decision to ban him was wrongly founded.
(b) Discovery is sought to support this proceeding and two other proceedings.
(c) Discovery is based on documents he wants or names and that everything [the defendants say] is wrong. That is the line of factual enquiry that encompasses other proceedings too.
(d) He is not fishing. His needs are specific because he has provided documents to Council’s law firm. He says it is the exercise of a discretionary power he is seeking but is limited in respect of what is reasonable. The documents are being withheld [by the defendants and their lawyers] and that is an abuse and a denial. He is limited to what he can access because the defendants have the material. The documents are not before the Court and it is not unreasonable for him to have them.
Council’s submissions included the following.
(a) The discovery application is described in Mr Russell’s summons. It is stated to be directed against Ms Abbey and seeks all evidence concerning the decision.
(b) There is an assumption against discovery in judicial review proceedings.
(c) The discovery sought is impossibly broad and by its terms oppressive. It seems that the sole purpose is speculative.
(d) There is no obligation under the Local Government Act 1989 to give reasons. The letter comprises reasons describing the exercise and consequence of power are matters that Ms Abbey took into account making the decision. It refers to previous correspondence referring to previous incidents concerning Mr Russell. Considering the content of the originating motion, it is irrelevant as to whether Mr Russell did all the various things that Council thinks he did. All that is relevant is were those incidents in Council’s mind when they made the decision. It does not matter whether or not they happened. It matters whether Council thought they happened.
(e) Mr Russell is not challenging the decision on the basis of irrationality or unreasonableness. There is nothing in the originating process that suggests a question of fact in dispute for which discovery ought to be made. This is a fishing expedition. There is no basis for the Court to find facts for which Mr Russell seeks discovery. It is irrelevant whether or not Mr Russell has a good case. Proof of what Mr Russell seeks in discovery will not aid him.
Analysis
Rules 29.01 and 29.01.1(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) provide:
29.01 Application and definition
(1)Except where the Rules of this Order otherwise provide, the Order applies only—
(a) to a proceeding commenced by writ; and
(b)to a proceeding in respect of which an order has been made under Rule 4.07(1).
(2) In this Order possession means possession, custody or power.
29.01.1 Scope of discovery
(1)Unless the Court otherwise orders, discovery of documents pursuant to this Order is limited to the documents referred to in paragraph (3).
(2) Paragraph (1) applies despite any other rule of law to the contrary.
(3)Without limiting Rules 29.05 and 29.07, for the purposes of this Order, the documents required to be discovered are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given—
(a) documents on which the party relies;
(b) documents that adversely affect the party's own case;
(c) documents that adversely affect another party's case;
(d) documents that support another party's case.
(4) Notwithstanding paragraph (3)—
(a)if a party giving discovery reasonably believes that a document is already in the possession of the party to which discovery is given, the party giving discovery is not required to discover that document;
(b)a party required to give discovery who has, or has had in the party's possession more than one copy, however made, of a particular document is not required to give discovery of additional copies by reason only of the fact that the original or any other copy is discoverable.
(5)For the purposes of paragraph (3), in making a reasonable search a party may take into account—
(a) the nature and complexity of the proceeding;
(b) the number of documents involved;
(c) the ease and cost of retrieving a document;
(d) the significance of any document to be found; and
(e) any other relevant matter.
Rule 29.07 of the Rules provides:
29.07 Order for discovery
(1)In a proceeding within Rule 29.01, notwithstanding that the pleadings between any parties are not closed, the Court may order that any of those parties make discovery of documents to any other of those parties.
(2)In a proceeding not within Rule 29.01, the Court may at any stage order any party to make discovery of documents.
(3)An order under paragraph (1) or (2) may be limited to such documents or classes of document, or to such questions in the proceeding, as the Court thinks fit.
(underline added)
Section 54 of the CPA indicates that, unless the Court otherwise orders, discovery is to be in accordance with the Rules.
I adopt the following statement of principles given by Ginnane J in Australian Society for Kangaroos Inc. v Secretary, Department of Environment, Land, Water and Planning.[8]
Discovery is often not ordered in judicial review proceedings because the documents evidencing the decision under review are usually before the court including a statement of reasons. But discovery can be ordered if the plaintiff has a good, or at least arguable, case proof of which would be aided by discovery. However, that is subject to any countervailing or discretionary factors, including the nature of the case and the time at which the application is made. It is sometimes said that the same discovery rules that apply in civil cases also apply in judicial review cases. But, 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.[9]
[8][2018] VSC 88 (28 February 2018).
[9]Ibid [21] (underline added).
During the hearing, there was also discussion of the useful summary of principles on discovery in judicial review proceedings given by Daly AsJ in Moreland City Council v Minister for Planning.[10]
[10][2014] VSC 468 [12]–[14] (24 September 2014).
I will make orders dismissing Mr Russell’s application for discovery. I do so on the basis that Mr Russell does not have a good, or at least arguable case, proof of which would be aided by discovery. The reasons are as follows.
First, the nature of Mr Russell’s case is such that it will not be aided by discovery. As discussed above, the questions for determination at trial will be legal rather than factual questions. Mr Russell’s amended originating motion sets out the grounds upon which he seeks relief. Accordingly, I reject Mr Russell’s submission that discovery is necessary in this proceeding to support ‘his plea’ that the decision to ban him was wrongly founded.
Second, r 29.01.01 limits the scope of discovery in a proceeding. Documents discovered in a proceeding may not be used for another purpose, such as to support another proceeding.[11] Accordingly, I reject Mr Russell’s submission that discovery should be given to support two other proceedings.
[11]Harman v Home Department State Secretary [1983] 1 AC 280.
Third, Mr Russell is seeking wide-ranging documents. I agree with the defendants’ submission that his discovery application is speculative. I do not accept Mr Russell’s submission that he should have the documents on the basis there has been an abuse or denial by the defendants or their lawyers.
Given the findings above, I do not need to address the remainder of the defendants’ submissions opposing the discovery application.
Conclusion
Orders will be made dismissing Mr Russell’s application for discovery and interrogatories made by summons on 22 February 2018.
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