Tah Land Pty Ltd v Western Australian Planning Commission

The applicant, Tah Land Pty Ltd, seeks judicial review of a decision by the Western Australian Planning Commission (the Commission) to make a taking order under the Planning and Development Act 2005 (WA). The substantive application includes two broad categories of grounds: those challenging the purpose of the taking order decision, and those alleging a failure to accord procedural fairness. The procedural fairness grounds contend that the decision-maker did not provide an opportunity for the applicant to make submissions on 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. The respondents have conceded that the applicant was not invited to make submissions on these issues but contend there was no obligation to provide such an opportunity.

The issues before the court are whether an order for discovery of documents in respect of the procedural fairness grounds should be made, whether the respondents have made out claims for public interest immunity, and whether the claims for legal professional privilege should be upheld. The court found that the applicant's case raises a cogent and bona fide allegation of lack of procedural fairness, and that the discovery is necessary for fairly disposing of the proceedings. The court noted that the discretion to order discovery is exercised with regard to the timely and cost-effective disposal of litigation and the public interest in having available all evidence relevant to the issues in litigation. The court ordered the respondents to provide a list of documents verified by affidavit in relation to the categories of documents identified in the applicant's minute of proposed orders.

The court proposed to take a pragmatic approach to dealing with the respondents' claims for legal professional privilege and public interest immunity. The documents should be made available to the court, and after inspection, the court will make rulings in relation to the claims for privilege. The court ordered the respondents to provide a list of the relevant documents and to articulate the claims for public interest immunity in an affidavit. The court also ordered that the documents should be made available to the court to inspect and to make rulings in relation to the claims for legal professional privilege.

In conclusion, the court granted the application for discovery in relation to the procedural fairness grounds and ordered the respondents to provide a list of documents verified by affidavit in relation to the categories of documents identified in the applicant's minute of proposed orders. The court proposed to take a pragmatic approach to dealing with the respondents' claims for legal professional privilege and public interest immunity and ordered that the documents should be made available to the court to inspect and to make rulings in relation to the claims for privilege.