Tah Land Pty Ltd v Western Australian Planning Commission - [2022] WASC 219

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   TAH LAND PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2022] WASC 219
CORAM:   TOTTLE J
HEARD:   10 JUNE 2022
DELIVERED          :   10 JUNE 2022
PUBLISHED           :   30 JUNE 2022
FILE NO/S:   CIV 1069 of 2022
BETWEEN:   TAH LAND PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
First Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Second Respondent

Catchwords:

Practice and procedure - Discovery - Judicial review application - Whether discovery necessary - Order for discovery made - Turns on own facts

Legislation:

Interpretation Act 1984 (WA), 60
Planning and Development Act 2005 (WA), s 191,
Rules of the Supreme Court 1971 (WA), O 56 r 5

Result:

Application for discovery granted

Category: B

Representation:

Counsel:

Applicant	:	M O'Meara SC
First Respondent	:	C Ide
Second Respondent	:	C Ide

Solicitors:

Applicant	:	Hotchkin Hanly
First Respondent	:	State Solicitor's Office
Second Respondent	:	State Solicitor's Office

Cases referred to in decision:

Canwest Global Communications Corporation v Australian Broadcasting Authority (1997) 24 ACSR 405
Cazaly Iron Pty Ltd v Bowler [2006] WASCA 282
FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342
Perpetual Trustees WA Ltd v The City of Joondalup [1999] WASCA 108
Singh v Friedman [2013] WASC 78

TOTTLE J:

(This decision was delivered extemporaneously on 10 June 2022 and has been edited from the transcript.)

Overview

In this application for judicial review, the applicant seeks discovery. The substantive application concerns a decision of the first respondent to make a taking order under s 191 of the Planning and Development Act 2005 (WA) in relation to land that forms part of the Kingsway Shopping Centre in Perth's northern suburbs. Before the taking order was made the land was owned by the applicant. This land had been reserved under the Metropolitan Regional Scheme in 1994 for the purposes of primary regional roads. The land has been referred to by the parties as the 'intersection land' reflecting its intended use as an intersection within the adjacent road network.
The grounds of the substantive application fall into two broad categories. Grounds 1A - 7 focus on the purpose of the taking order decision. These grounds assert:
(a)The stated purpose of the decision was not reasonably and objectively open to the first respondent.
(b)There was no proper basis for the first respondent to form the view that the intersection land should be taken.
(c)The decision to take the intersection land was legally unreasonable.
(the proper purpose grounds)
The second category of grounds, and the one with which these reasons are most directly concerned, contends that there has been a failure to accord procedural fairness to the applicant in the following respects:
(a)The decision-maker did not provide an opportunity to the applicant to make submissions either in relation to whether the Governor's consent to the taking order should be sought, or in relation to a recommendation that the Governor's consent should be given.
(b)The decision-making process involved no proper, genuine and independent consideration of the question of whether the Governor's consent to the taking order should be sought, or whether a recommendation that the Governor's consent should be given.
(the procedural fairness grounds)
The respondents have conceded that the applicant was not invited to make submissions as to whether the Governor's consent should be sought, or a recommendation that the Governor's consent should be given. They contend there was no obligation to provide the applicant with an opportunity to make submissions. Thus, there were no submissions to consider.
Whether the decision-maker in this case (the Minister of Planning or a senior officer within the Minister's Department) failed to give proper, genuine and independent consideration to whether the Governor's consent to the taking order should be sought or recommended is a live issue.
The discovery application comes before me today as a result of directions and orders made by Smith J who is case managing the substantive application. On 7 April 2022 Smith J made orders to the following effect:
(a)The respondents give discovery of documents relating to the lack of proper purpose grounds.
(b)The application for discovery in relation to documents said to be relevant to the procedural fairness grounds be determined by another judge of the General Division.
(c)Claims for legal professional privilege over documents discovered by the respondents in relation to the lack of proper purpose grounds be determined by another judge of the General Division.
(d)Claims for public interest immunity in relation to documents relevant to the procedural fairness grounds be determined by another judge of the General Division.
The purpose of adjourning these aspects of the discovery application to another judge was to ensure any inspection of documents by the court could be undertaken without the contents of privileged documents being disclosed to Smith J thereby jeopardising her Honour's ability to hear the substantive application.
The respondents have made documents relevant to the proper purpose grounds available for inspection by the applicant. In addition, the respondents filed and served a list of documents in respect of which legal professional privilege has been claimed and filed an amended list of documents articulating the claims of privilege in more detail to address criticisms made by the applicant of the first list.
The applicant maintains that the amended list fails, in a number of respects, to articulate the claims for privilege in sufficient detail for the applicant to be able to determine whether the claims are properly made.
In summary the respondents object to providing discovery in relation to the procedural fairness grounds both on the ground that discovery is not required, and, in any event, the respondents contend the applicant has not established a proper basis for discovery, and separately, the respondents contend the documents sought by the applicant attract public interest immunity privilege.

The issues

The issues that I am called upon to determine are these:
(a)Should an order for discovery of documents in respect of the procedural fairness grounds be made?
(b)Have the respondents made out claims for public interest immunity in relation to documents relevant to the procedural fairness grounds to the extent that the foreshadowed claim should defeat the application for discovery, or should the public interest immunity privilege claims be considered in the context of whether the appellant should be permitted to inspect the documents?
(c)And, should the claims for legal professional privilege be upheld?

Discovery - general principles

It is necessary to refer briefly to the principles relating to discovery.
In Perpetual Trustees WA Ltd v The City of Joondalup,[1] Owen J, as his Honour then was, observed that it would be unusual for discovery to be ordered in proceedings for a prerogative writ. This is because applications for such relief are concerned with the legality of the decision-making and the conduct of the decision-makers, rather than the inherent merits of the decisions under review. That position is reflected in the Rules of the Supreme Court 1971 (WA). Order 56 r 5(2)(g) provides the court may give an applicant leave to seek discovery, and if such leave is given, then the general principles governing discovery apply.
[1] Perpetual Trustees WA Ltd v The City of Joondalup [1999] WASCA 108.
The general principles were conveniently summarised by Allanson J in Singh v Friedman[2] as follows:
1.A party does not have a strict entitlement to an order for discovery.
2.The power to order discovery is discretionary.
3.The discretion is to be exercised having regard to the timely and cost effective disposal of litigation.
4.On the other hand, discovery has been described as promoting the ascertainment of truth in litigation and as an essential part of the proper administration of justice.
5.Subject to the rules of privilege, there is a 'public interest in having available all evidence relevant to the issues in litigation'.
6.The ultimate test is whether the discovery is necessary for fairly disposing of the proceedings.
7.Relevance is not the only factor the court must consider in the exercise of the discretion to order discovery. But whether a document relates to a matter in question in the proceedings remains the descriptive criterion in O 26 of what documents should be discovered.
[2] Singh v Friedman [2013] WASC 78 [3] - [4].
Discovery will be ordered in judicial review proceedings if it is necessary for the proper administration of justice and for disposing fairly of the grounds of review.[3] In Cazaly Iron Pty Ltd v Bowler,[4] Buss JA (as his Honour then was) summarised the relevant case law in relation to applications for discovery within judicial review proceedings and quoted extensively and with approval from the judgment of Hill J in Canwest Global Communications Corporation v Australian Broadcasting Authority.[5]Referring to Hill J's judgment in Canwest, Buss JA said:
After referring to and discussing the decision of a Full Court of the Federal Court in WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175, his Honour said, at 412:
'The power of the court to order discovery in judicial review cases, particularly those brought under the ADJR Act, was considered by a Full Court of this court, differently constituted, in ASC v Somerville, supra. In that case the court (comprising Black CJ, Ryan and Olney JJ) referred to WA Pines and, inter alia, the judgment of Beaumont J in Re FCT; Ex parte Swiss Aluminium Australia Ltd (1987) 72 ALR 247 and concluded that there was no justification for the view that discovery in judicial review proceedings should be treated otherwise than according to the ordinary principles applicable in civil proceedings. Their Honours recognised that, having regard to s 13 of the ADJR Act, the occasion for making an order for discovery will not necessarily arise where the court has all the material necessary to exercise its jurisdiction.
One of the arguments put to the court in Somerville was that it was incumbent upon an applicant for discovery to establish, usually by way of evidence, a basis upon which the court should conclude that there was an issue to be tried, proof of which would be aided by discovery. This argument was rejected. Certainly there is no such requirement in the general law where discovery is sought in ordinary civil cases.'
…
His Honour then examined, at 414 - 415, the so-called exception encompassed by the words "fishing expedition":
…
[W]here the manner in which the decision-maker has acted is at issue and the issue is required to be determined by reference to materials before the decision-maker, supervisory review can not be exercised without regard to the relevant material. It may support the applicant. It may support the respondent.
[3] Cazaly Iron Pty Ltd v Bowler [2006] WASCA 282 [92].
[4] Cazaly Iron Pty Ltd v Bowler [2006] WASCA 282.
[5] Canwest Global Communications Corporation v Australian Broadcasting Authority (1997) 24 ACSR 405, 415.
Two observations made by Hill J in Canwest in the extract of the judgment quoted by Buss JA in Cazaly Iron are of particular significance:
(a)there is no principle that an applicant for discovery must establish by way of evidence a basis upon which the court should conclude that there was an issue to be tried, proof of which would be aided by discovery; and
(b)where the manner in which the decision-maker has acted is in issue and the issue is required to be determined by reference to the materials before the decision-maker, the supervisory review cannot be exercised without regard to the relevant material.

Discovery in support of the procedural fairness grounds

The documents sought in relation to the procedural fairness grounds were set out in par 3 of the applicant's minute of proposed orders dated 6 April 2022 as follows:
3.Subject to order 4 below, by 5pm on 14 April 2022, the Respondents provide to the Applicant the following documents, including file notes, memoranda, letters and emails, whether stored electronically or otherwise (using the same defined terms as appear in the Application for Judicial Review):
(a)documents evidencing the consent of the Governor to the purported Taking Order (the Consent);
(b)documents evidencing advice given to the Governor by one or more Ministers (the relevant Minister(s)) to provide the Consent;
(c)notes, memoranda, report, recommendation, or any other correspondence, in relation to the purported Taking Order provided to:
(i)the Governor for the purposes of procuring the Consent; and/or
(ii)the relevant Minister(s) for the purpose of deciding whether to provide advice to the Governor to give the consent.
(d)notes or memoranda by the relevant Minister(s) or any officer engaged by the relevant Minister(s) for the purpose of assisting him or her in forming a view as to whether advice should be given to the Governor to provide the Consent;
(e)correspondence from the Governor and/or the relevant Minister to the First respondent in relation to the purported Taking Orders.
The applicant does not suggest that this is a case in which the Governor was or ought to have been involved in deliberations as to whether consent to the taking order should be given. The applicant acknowledges the effect of s 60 of the Interpretation Act 1984 (WA), that where there is a reference to the Governor doing some act, matter or thing, it will be taken to mean that such act, matter or thing shall be done by the Governor with the advice and consent of the Executive Council.
In relation to the general workings of the Governor in Council, I have been guided by the observations of Wilson J in FAI Insurances Ltd v Winneke:[6] It is unnecessary to repeat those observations in these reasons.
[6] FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342, 400 - 401.
The applicant submits the inclusion in s 191(1) of the Planning and Development Act 2005 (WA) of a requirement for the Governor's consent to the taking order to be obtained, is a safeguard against the arbitrary exercise of power by the executive, and that being so, if it is to operate as an effective safeguard, it implies an obligation to accord procedural fairness to the land owner.
The respondents' answer to that submission is to say that as a matter of statutory interpretation, no such obligation of procedural fairness arises. They contend that the stage of the process at which procedural fairness was required to be given was the reservation of the intersection land under the Metropolitan Regional Scheme in 1994 and that there is nothing in the statutory framework that suggests that the land owner should be afforded an opportunity to make submissions before recommending and seeking the Governor's consent.
The question of discovery arises on the hypothesis that the applicant succeeds in its primary argument, that is, it establishes there is an obligation on the respondents to accord the applicant procedural fairness. The question will then be whether the applicant has made out its argument that there has been a lack of procedural fairness. It is to this question that the documents sought by the discovery application are relevant.
On this question the respondents say that the applicant's case rises no higher than an assertion that there has been a failure to accord procedural fairness and that there is no substance or support for that case in any of the materials that are presently relied upon by the applicant.
I do not accept that is so. I consider there is at least an inference that can be drawn from the circumstances of the decision-making process in this case that the decision-maker failed to give proper, genuine, and independent consideration to the issue of whether the Governor's consent should be sought or whether a recommendation that it be given should be made.
That inference arises from two matters. First, the question of whether such consideration was given is closely related to the question of whether the decision-maker was under an obligation to accept and consider submissions from the applicant. If the decision-maker failed to accept and consider submissions from the applicant, then it is a short step to infer that proper, genuine, and independent consideration was not given to recommending and seeking the Governor's consent. Secondly, (perhaps this is of slightly less significance) the overall position adopted by the respondents in this matter is consistent with there being no obligation to accord procedural fairness of any kind to the applicant in the decision-making process under review. That being so, I think it is open to infer that no such consideration was given and that the recommending and seeking of the Governor's consent were steps regarded as formalities to be observed to carry the taking order into effect and distinct from the deliberative process.
The analysis just undertaken proceeds on the basis most favourable to the respondents, that is, I have, in effect, searched for an evidentiary foundation to support the application for discovery but on the basis of the statements of applicable principle derived from Hill J's judgment in Canwest such an exercise is unnecessary. All that is required is for the allegation to be pleaded in a cogent, bona fide way in the substantive application, thereby giving rise to an issue to which the discovery is said to be relevant. That has been done in this case.
Thus, in my view, the respondents should provide discovery of the documents relating to the procedural fairness ground.
It might be said, perhaps with some justification, that the applicants have cast the net wider than may be required in sub-pars 3(a) to 3(e) of their minute. There is a degree of overlap between the categories of documents that are sought, but any criticism of the applicant's approach must be tempered by an appreciation that the applicant does not know precisely what documents exist. In other circumstances, there might be a justification requiring the documents to be specified with a greater degree of precision, but in the circumstances of this case it is appropriate to order that the respondents provide a list of documents verified by affidavit in relation to the categories of documents identified in sub-pars 3(a) to 3(e).

Respondent's claim for public interest immunity privilege

Notwithstanding that each side made detailed and helpful written submissions, it is both proper and preferable to determine any claims for public interest immunity after a list of the relevant documents has been produced and the claims for public interest immunity are articulated in the conventional way in an affidavit. I will make orders to that effect.

Respondents' claim for legal professional privilege

I propose to take a pragmatic approach to dealing with the claims for legal professional privilege. The documents should be made available to me, and after I have inspected them, I will make rulings in relation to the claims.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Associate to the Honourable Justice Tottle
30 JUNE 2022