The New South Wales Greyhound Breeders Owners and Trainers Association Limited v Attorney General of NSW (No. 2)

[2016] NSWSC 1818

Supreme Court

New South Wales

Medium Neutral Citation:	The New South Wales Greyhound Breeders Owners & Trainers Association Limited v Attorney General of NSW (No. 2) [2016] NSWSC 1818
Hearing dates:	14 December 2016
Decision date:	15 December 2016
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Dismiss the further amended notice of motion filed on 14 December 2016.  (2) Order the plaintiff to pay the defendant’s costs of the motion.
Catchwords:	PRACTICE AND PROCEDURE – discovery sought by plaintiff by reference to categories – two categories abandoned on day of hearing – two categories pressed at hearing: category (a) transcript of particular private hearings – not relevant to a fact in issue – category (b) documents referred to in Chapter 11 of Report of the Special Commission of Inquiry into the Greyhound Racing Industry in NSW – documents can be obtained more efficiently and cheaply by notice to produce – discovery unnecessary – motion dismissed   COSTS – initial orders sought by plaintiff considered to determine appropriate costs order – plaintiff wholly unsuccessful – plaintiff to pay defendant’s costs of motion
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60 Special Commissions of Inquiry Act 1983 (NSW), ss 4, 7, 8, 9, 17, 36 Uniform Civil Procedure Rules 2005 (NSW), r 21
Cases Cited:	Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy (1992) 37 FCR 463 Kirk v Industrial Court (2010) 239 CLR 531; [2010] HCA 1 Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	The New South Wales Greyhound Breeders Owners & Trainers Association Limited (Plaintiff) Attorney General of NSW (First Defendant) The Honourable Michael Hudson McHugh AC QC in his capacity as Commissioner appointed under the Special Commissions of Inquiry Act 1983 (Second Defendant)
Representation:	Counsel: D Bennett QC/AK Flecknoe- Brown (Plaintiff) S Free (First Defendant) Solicitors: DCE Lawyers (Plaintiff) Crown Solicitor (First Defendant) Submitting appearance filed by Second Defendant
File Number(s):	2016/229063
Publication restriction:	Nil

Judgment

Introduction

1. By amended notice of motion filed on 14 December 2016, which amended the notice of motion filed on 27 September 2016, the New South Wales Greyhound Breeders Owners & Trainers Association Limited (the plaintiff) sought an order for discovery of the following categories of documents:

“An Order that the First Defendant provide discovery of the following categories of documents, the list of documents to be served on the Plaintiff on or before 6 October 2016:

(a)   all transcripts of private hearings of the Special Commission of Inquiry into the Greyhound Racing Industry in New South Wales (“the Special Commission”) during which the following witnesses were examined:

i.   Wayne Smith;

ii.   Ada Wallace;

iii.   Todd Fear;

iv.   Majella Ferguson;

v.   Sherrie Turner; and

vi.   Tony Gannon;

(b)   all written submissions provided to the Special Commission by:

i.   Greyhounds Australasia, including but not limited to Response 21 to Breeding Issues Paper dated 23 November 2015;

ii.   Greyhound Racing New South Wales, including but not limited to Response to Order 27 dated 19 February 2016;

iii.   the Royal Society for the Prevention of Cruelty to Animals;

iv.   Animals Australia, including but not limited to Submission 651 to the Commission 6 July 2015, Submission 5A to the Five Year Statutory Review dated 13 February 2015, and Submission 5B to the Five Year Statutory Review dated 2 March 2015;

(c)   all other documents provided to the Special Commission by Greyhounds Australasia or Greyhound Racing New South Wales or the Royal Society for the Prevention of Cruelty to Animals or Animals Australia, relating to either or both of the following topics:

i.   wastage; or

ii.   live baiting;

(d)   all written submissions provided to the Special Commission by Counsel Assisting;

(e)   the transcript of any closing oral submissions by Counsel Assisting.”

2. The defendant has informed the plaintiff that no documents in categories (d) and (e) above exist. Accordingly, the plaintiff does not press those categories. The plaintiff accepts that some of the evidence relied on by the Commissioner is available publicly on the Commission’s website and does not press for discovery of such material.

3. The motion was further amended in the course of the hearing on 14 December 2016 to delete all but paragraph (a) and to substitute (b) with the following:

“(b)   all documents specifically referred to in Chapter 11 of the Report of the Special Commission”

4. The circumstances of the further amendment, which, in effect, resulted in the abandonment of (b) and (c), will be addressed further below. By reason of this concession, many of the issues addressed by the evidence and the detailed written submissions do not need to be determined. However, as both parties sought costs of the motion, it will be necessary to address, at least in summary form, the merits of the motion as originally proposed, in order to determine whether a costs order ought be made and in what terms.

5. The first defendant, the Attorney-General of NSW (the defendant), has, with one exception, opposed the orders sought in the motion. Mr Free, who appeared on her behalf at the hearing, accepted that the defendant would provide the documents described in (b) in the further amended notice of motion. The second defendant, Michael Hudson McHugh AC QC in his capacity as Commissioner appointed under the Special Commissions of Inquiry Act 1983 (NSW) (the Act) (the Commissioner), has filed a submitting appearance. For the purposes of the motion, the defendant accepts that it has control over all the Commissioner’s documents.

Relevant legislative provisions

Special Commissions of Inquiry Act 1983 (NSW)

6. Section 7 of the Act provides for a Commissioner to hold hearings in public or in private. Section 7(2) provides:

“Where a Commissioner decides to hold a hearing, the hearing shall take place in public, unless the Commissioner, if satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, directs that the hearing take place in private.”

7. Section 8 provides:

“Restrictions on publication of evidence

A Commissioner may give directions preventing or restricting the publication of evidence given before the Commissioner or of matters contained in documents lodged with the Commissioner.”

8. Section 9 of the Act provides:

“Limitations as to evidence

(1) As far as practicable, a Commissioner shall, in the course of a hearing in public, only receive evidence in accordance with this section.

(2) The Commissioner shall only receive evidence that appears to relate to a matter specified in the relevant commission.

(3) The Commissioner shall only receive as evidence, and (as far as practicable) only permit to be given in evidence, matter that, in the opinion of the Commissioner, would be likely to be admissible in evidence in civil proceedings.

(4) Despite subsection (3), the Commissioner is required, when preparing a report in connection with the subject-matter of the commission, to disregard (in the context of dealing under section 10 with offences that may or may not have been committed) evidence that, in the opinion of the Commissioner, would not be likely to be admissible in evidence in relevant criminal proceedings.

(5) For the purposes of this section, in determining whether evidence is admissible, regard is not to be had to parliamentary privilege to the extent that that privilege is waived by or under this Act or otherwise.”

9. Section 17 of the Act provides in part:

“Answers and documents

(1) A witness summoned to attend or appearing before a Special Commission shall not be entitled, except as otherwise provided in this section and section 127 (Religious confessions) of the Evidence Act 1995, to refuse:

(a) to be sworn or to make an affirmation,

(b) to answer any question relevant to the inquiry put to the witness by the Commissioner, or

(c) to produce any book, document or writing in the witness’s custody or control which the witness is required by the summons to produce.”

10. Section 36 of the Act provides that no proceedings are to lie in respect of a Special Commission in the following terms:

“(1) A Special Commission shall not be vitiated by reason of any informality or want of form or be liable to be challenged, appealed against, quashed or called in question by any court.

(2) No proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, shall lie in respect of any Special Commission.”

11. I note that the plaintiff relies on the inherent jurisdiction of this Court with respect to jurisdictional error, which cannot be ousted by statute: Kirk v Industrial Court (2010) 239 CLR 531; [2010] HCA 1 at [55] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

Civil Procedure Act 2005 (NSW) and Uniform Civil Procedure Rules 2005 (NSW)

12. It is necessary, before an order for discovery is made, for the Court to be satisfied that it is in the interests of justice and consistent with the just, quick and cheap determination of the real issues in the proceedings, having regard to ss 56, 57, 58, 59 and 60 of the Civil Procedure Act 2005 (NSW).

13. The relevant rule for present purposes is Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 21.2(4), which provides that an order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue.

The factual background

Establishment of the Commission

14. By letters patent issued on 6 May 2015 pursuant to s 4 of the Act, the Commissioner was appointed and authorised to inquire into and report to the Governor on various matters concerning the greyhound racing industry of New South Wales (the terms of reference). The Commission held 43 private hearings. It also held public hearings.

Orders issued by the Commission and the documents produced in answer to the orders

15. The Commission issued several orders to answer questions and produce documents pursuant to s 17(2) of the Act, including 34 such orders to Paul Newson, Chief Executive of Greyhound Racing NSW. All but three of the orders issued to the relevant officer at Greyhound Racing NSW required production of information or documents relating to wastage or live baiting. Greyhound Racing NSW produced in the order of 118,807 pages of information in response to the 31 orders issued to it which required production of information or documents relating to wastage or live baiting. The Commission issued seven orders to Steven Coleman, Chief Executive Officer of the Royal Society for the Prevention of Cruelty to Animals (RSPCA), all but two of which related to wastage or live baiting. The RSPCA provided about 10,962 pages in response to these five orders. The Commission also issued an order to Glenys Oogjes, Executive Director of Animals Australia. Thirteen pages were produced in answer to this order.

16. Cheryl Drummy, a solicitor employed at the Crown Solicitor’s Office, estimated that it would take in the order of 6 weeks to review these documents.

Public hearings

17. As referred to above, the Commissioner conducted public hearings. Various witnesses were examined, including those who had given evidence in private hearings. The witnesses listed in category (a) of the motion gave evidence at public hearings. Extracts from the transcripts of these witnesses were annexed to the affidavit of Mr English affirmed on 6 October 2016. Of present relevance the witnesses’ evidence at the public hearings in those extracts was as follows.

Ada Wallace

18. In the course of her public examination on 28 September 2015, Ada Wallace was asked about her evidence at a private examination in which she had told the Commissioner that Norm Becroft, who was associated with Greyhounds NSW, had been involved in live baiting. Ms Wallace confirmed in the public hearing that she had not seen Mr Becroft engage in live baiting, although she had seen him at Bruce Carr’s premises using “the bullring”. Ms Wallace confirmed that she had gone to the premises for the purposes of using live baits at the bullring. Ms Wallace confirmed that she had seen Mr Becroft putting dogs in boxes and jumping dogs out onto rabbits; however she confirmed that she did not know whether the rabbits he used on those occasions were alive or dead. Ms Wallace confirmed the truth of evidence she had given at private hearing that she had seen Mr W, another trainer, put a rabbit on a lure to the bullring.

Wayne Smith

19. Wayne Smith gave evidence at a public hearing on 28 September 2015. He said that in his many years in Greyhound Racing he had only ever been inspected by Greyhound Racing NSW, or its predecessor, on one occasion, in February 2015.

Todd Fear

20. Todd Fear gave evidence at a public hearing on 29 September 2015. Extracts from his evidence at a private hearing were put to him, after which he agreed that there was no doubt that, on a particular occasion, the rabbit which was put in front of his dog in front of the viewing kennel was alive.

Sherrie Turner

21. Sherrie Turner was asked at a public hearing on 29 September 2015 whether she had been examined at a private hearing earlier that month, to which she answered yes.

Majella Ferguson

22. In a public examination on 29 September 2015 Majella Ferguson confirmed her evidence at a private hearing that she had gone to Mr X’s place on a couple of occasions on which live baits were used. She also confirmed that she had gone to Mr Carr’s place and seen dogs going around the bullring. Although she believed that they used live baits there, she said “[I] a hundred per cent haven’t seen them using live rabbits”. Ms Ferguson identified various trainers whom she had observed at Bruce Carr’s place using live rabbits. Ms Ferguson also gave evidence that she had seen live baiting at Mr W’s premises on one occasion.

23. Ms Ferguson was asked to confirm her evidence at the private hearing that her opinion, based on what she saw and what other people said to her, was that live baiting was “extremely widespread”.

Tony Gannon

24. Tony Gannon gave evidence at the public hearing on 1 October 2015. A record of interview which had been conducted by Mr Madden on behalf of Greyhound Racing NSW on 7 April 2015 was put to him. Mr Gannon confirmed that it was a voluntary interview. He also confirmed that the information he had given in the interview was accurate. It was put to him that he had answered the question whether live baiting was prevalent in the greyhound business as follows:

“I mean, I’m not going to sit here and be a hypocrite. Of course it was widespread and that’s how we’ve been brought up to train. If you can find us another way of doing it, well, let’s do it. Personally, I don’t care about dead rabbits. I don’t care about it. I’m more of a money – the issue of money is more my concern to keep the industry going.”

25. In further questioning at the public hearing Mr Gannon denied that he had ever engaged in the practice of live baiting.

The report

26. On 16 June 2016 the Commissioner provided his report to the Governor in purported compliance with his duty under s 10 of the Act (the report). The report, which comprised several volumes, set out the Commission’s findings and the material relied upon to reach those findings. The material relied on to reach the findings is a subset of the material which was considered by the Commission.

27. Of present relevance, Chapter 2 of the report was entitled: “Conduct of the Special Commission of Inquiry” and Chapter 11 of the report was entitled: “Wastage”. The following extract from Chapter 2 sets out the process adopted for private and public hearings:

“Witnesses

2.36   Counsel assisting determined which witnesses were to be called to give evidence at the private and public hearings and examined those witnesses. For the public hearings witness list, see Appendix 1.

The private hearings

2.37   During its initial investigative stage, the Commission held 43 private hearings across 11 days.

2.38   The private hearings were held to obtain and explore information it had received, primarily related to live baiting, but including governance and management issues, before considering what evidence should ultimately be led at the public hearings, thus filtering out evidence not otherwise of sufficient relevance. In this way, the private hearings offered a useful mechanism for ensuring efficiency in the conduct of the public hearings.

2.39   Information obtained during private hearings informed the Commission generally about matters to be explored and provided background information. In some cases it also formed part of the evidence to which the Commission ultimately had regard for the purposes of this report. Thus, the transcript from the private hearing of Mr Anthony O’Mara was tendered during his appearance before the Commission in the public hearings, with his consent.

2.40   In addition, the Commissioner was required to consider the application of a witness, who gave evidence in private, that the witness should not be required to give evidence in public, for medical reasons. In granting the application, the Commissioner determined that, pursuant to powers available under the Special Commissions of Inquiry Act, the witness would be allocated a pseudonym and that an anonymised version of their transcript would be published on the Commissioner’s website and received as evidence in the public hearings.

The public hearings

2.41   Given the nature of the matters at issue, the Commission determined that public hearings should be held, in part to provide transparency about the inquiries it was undertaking.

2.42   The public hearings were the means by which the Commission received evidence on which particular findings and conclusion in this report are based.

2.43   Twenty-six witnesses appeared before the Commission during the 10 days of public hearings. The public hearings were conducted from 28 September to 2 October 2015, 17 November 29015 to 19 November 2015; and on 17 and 18 February 2016.”

[Emphasis added.]

28. In Chapter 11 there is a section dealing with the scale of the problem of wastage, which reads as follows:

“11.37   The Commission considers that it is unnecessary to arrive at a precise figure to conclude that wastage in the industry is unacceptably high. To debate the precise figure, as some sought to do during the course of the Commission’s inquiry, is a distraction. Even the most conservative analysis carried out by the industry demonstrates that wastage is of a magnitude that is at odds with the animal welfare expectations of modern Australians and would be repugnant to many of them. Ultimately, what is important is to identify the scale of the problem. The question then is to determine whether it can be addressed.

11.38   The Commission has determined the magnitude of the problem within a broad and conservative range. The material upon which it has relied is addressed below.”

The proceedings

The relief sought

29. The principal relief sought in the summons is:

“A declaration that the Report of the Special Commission of Inquiry into the Greyhound Racing Industry in New South Wales dated 16 June 2016 (“the Report”) is invalid and of no effect because it was beyond the jurisdiction of the Commissioner, being:

a.   unreasonable;

b.   made without providing procedural fairness to the Plaintiff; and

c. made otherwise than in accordance with the matter specified in the commission of the Commissioner, or alternatively otherwise than in compliance with the conditions and limitations imposed upon the commission of the Commissioner, under the Special Commissions of Inquiry Act 1983 (NSW) (“the SCI Act”).”

The grounds of review

First ground: the report is unreasonable to the extent to which it makes so-called “social licence findings”

30. Paragraph [1.113] of the report said:

“the Commission is of the view that the [greyhound racing] industry [in NSW] has lost the integrity-based trust of the community and other stakeholders. It could hardly be otherwise.”

31. The Commission’s first recommendation was:

“Given the findings of the Commission concerning the management and governance of the greyhound racing industry, the Parliament of NSW should consider whether the industry has lost is social licence and should no longer be permitted to operate in NSW.”

32. The plaintiff seeks to challenge the report on the basis of the Commission’s reliance on “social licence” (referred to in the passages above). The summons identifies various arguments in support of this challenge: first, the concept of social licence is outside the terms of reference; secondly, the Commissioner, by relying on certain material, acted in breach of s 9(3) of the Act (see above); thirdly, that there was a denial of procedural fairness; and, fourthly, that the findings of the Commission relating to social licence were unreasonable. The plaintiff accepts that this ground is “peripheral” to the discovery application.

Second ground: alleged misconstruction of the terms of reference

33. The plaintiff also challenges the report on the basis of a contention that the Commissioner misconstrued term C6 of the terms of reference with the consequence that the treatment of the economic and social contribution of the greyhound racing industry was inconsistent with the terms of reference. The plaintiff does not rely on this ground to support its application for discovery.

Third ground: allegation that the statistical analysis and findings in the report concerning wastage and live baiting are unreasonable or irrational

34. The plaintiff also challenges the report on the basis of a contention that the statistical analysis and findings in the report concerning wastage and live baiting are unreasonable or irrational. Its principal allegations in support of the third ground are set out in the summons as follows:

“34.   The Report in relation to wastage contain numerous findings which were irrational, either because they were based upon assumptions which were unsupportable by admissible evidence, or because they were derived by erroneous statistical analysis (including multiple approximations which, by a multiplier effect, lead to meaningless findings) which findings cannot be justified on any reasonable basis.

35.   The Report in relation to live baiting contains numerous findings which were irrational, either because they were without foundation in evidence which would or be likely to be admissible in civil proceedings, or because inferences based upon any such evidence were erroneous or without logic.”

35. The plaintiff also supports its challenge to this aspect of the report by contending that some of the material relied upon in the report would not satisfy the test in s 9(3) of the Act.

The application for discovery

The evidence

The plaintiff’s evidence

36. The plaintiff relied on the affidavits of its solicitor, Dennis English, affirmed 27 September 2016 and 6 October 2016. The annexures include: extracts from the report (Chapter 11: Wastage); extracts from transcripts of public hearings which contain parts of the evidence given by witnesses referred to in (a) of the notice of motion; and correspondence between the parties. The defendant relied on the affidavit of Ms Drummy affirmed 18 November 2016. Ms Drummy was counsel assisting the Commission between 25 March 2015 and 24 June 2016. She was present at most of the 43 private hearings conducted by the Commission and is familiar with the course adopted by the Commissioner. The annexures to her affidavit include a copy of Chapter 2 of the report entitled: “Conduct of the Special Commission of Inquiry” (extracts of which are set out above).

The parties’ submissions

37. The parties’ submissions will be referred to, where necessary, by reference to the particular categories. However, because the defendant had a general objection to all categories, I propose to set out her arguments and the plaintiff’s response to the general objection.

The plaintiff’s submissions

38. The plaintiff submitted that because large amounts of the material considered by the Commissioner were not in the public domain, it was necessary for the material to be discovered in order to permit the plaintiff to make its case that the Commissioner’s findings were unreasonable. It contended, in its written submissions:

“Given that the real issues in the proceeding involve a close consideration of the likely admissibility of these numerous pieces of evidence, it is necessary for all such pieces of evidence to be before the Court.”

The defendant’s submissions

39. The defendant foreshadowed that she would object to the relief sought in the summons on the basis that there was no jurisdiction to review the reasonableness of a subsidiary finding of fact. However, the defendant accepted that it was appropriate to put such matters to one side when addressing the question whether discovery ought be ordered.

40. Mr Free submitted that it was clear from the terms of Chapter 2 of the report that the only material on which the Commissioner based his findings was the material identified in the report and that no material from private hearings had been relied upon to support the findings in the report except in so far as it was either tendered through the witness in a public hearing or, in the case of a witness who was indisposed, the evidence was tendered in the public hearing and posted on the Commission’s website. Mr Free confirmed that this was the defendant’s position in the proceedings. He also relied on a letter from the defendant’s solicitors to the plaintiff’s solicitors dated 27 September 2016, immediately before the notice of motion was filed, which said, in part:

“Category (c) – All other documents provided by Greyhounds Australasia Greyhound Racing NSW and the RSPCA relating to wastage and/ or live baiting

It is not apparent to the defendants why any such documents, let alone all such documents, are relevant to any fact in issue. Paragraphs 33-37 of your client’s summons identify certain grounds of review relating to wastage and live baiting. By letter dated 6 September 2016 the plaintiff provided extensive particulars relating to paragraphs 34 and 35. The plaintiff’s contentions in the summons (as particularised) relating to wastage and live baiting proceed, unsurprisingly, by reference to the reasoning in the Report and the evidence relied upon by the Commissioner as specified in the Report. As the plaintiff’s particulars make plain, the plaintiff already has access to most if not all of the documents in question. While your letter of 6 September 2016, at 6.42, suggests that the plaintiff may seek production of documents “referred to by the Commissioner in his report that are not publicly available”, you have not sought to frame category (c) in such terms. Instead, category (c) seeks broad ranging discovery of all material relating to those topics as submitted by the three specified parties.

If you propose to press for discovery in respect of such a category, I invite you to indicate what fact or facts in issue such documents would be relevant to. Please note also that the category as presently formulated is oppressive, as I am instructed that it captures a large number of documents which would need to be reviewed prior to inspection, including to deal with concerns as to confidentiality and/or public interest immunity.”

[Emphasis added.]

41. Mr Free contended that the plaintiff has, in the summons, the particulars and the evidence in support of the motion for discovery, clearly identified the material that is factually relevant to its contentions that the material did not rationally or reasonably support the Commissioner’s conclusions. The defendant contended that, in these circumstances, discovery was neither necessary nor warranted.

The plaintiff’s submissions in reply

42. Mr Bennett QC, who appeared with Mr Flecknoe-Brown for the plaintiff, indicated (in the plaintiff’s submissions in reply filed on 9 September 2016 and orally in the hearing on 14 December 2016) that the plaintiff was prepared to file the further amended notice of motion if the defendant gave an undertaking “to maintain for the whole of these proceedings the position that the Commissioner’s findings can be sustained only by reference to the material to which he explicitly referred in Chapter 11 of the report”.

43. By reason of some miscommunication, the defendant’s instructions were not sought on the giving of the undertaking until the morning of 14 December 2016. They were not forthcoming before the conclusion of the hearing. However, the plaintiff accepted Mr Free’s statement of the defendant’s position as set out above and, on that basis, was granted leave to file the further amended notice of motion as set out above.

Consideration

44. Before an order for discovery is made the Court must be satisfied that the documents of which discovery is sought are relevant to a fact in issue, in that they could rationally affect the assessment of the probability of the existence of a fact in issue: UCPR 21, rr 1 and 2. Discovery has the potential to cause the incurring of disproportionate costs and undermine the overriding purpose of the Civil Procedure Act, identified in s 56, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 at [101] per Allsop P (Macfarlan JA agreeing). Accordingly, the forensic purpose sought to be achieved by discovery ought be identified and examined to determine whether it can be achieved by another more efficient, less costly, means. Discovery in proceedings for judicial review is rarely permitted because it is rarely appropriate by reason of the nature of such proceedings and the relief available. If, however, an applicant for discovery in such cases identifies a forensic purpose which cannot be achieved by other (less costly) means and discovery is not oppressive, it may be ordered.

45. I accept the defendant’s submissions that discovery is not necessary of any of the categories sought, including (b) and (c) which have since, in any event, been abandoned. The plaintiff has, in its summons, particulars, evidence and submissions, cited the material which is said to make the findings of the report irrational and unreasonable. Whether or not it can make good the argument is not to be decided in the present application.

46. As discovery by category is sought, I propose to address each category individually.

Category (a): transcript of particular private hearings

47. The plaintiff summarised its claim for discovery of documents in this category in its written submissions in reply as follows:

“3.   For present purposes the central substantive issue is whether, with respect to any of the evidence upon which the Commissioner relied in reaching his findings on wastage and live baiting, the Commissioner failed properly to form an opinion as to whether that evidence would be likely to be admissible in civil proceedings. The consequences of this point, in terms of jurisdictional error, are a matter for legal argument.

4.   However, this motion crystallises a secondary question of what evidence might be relevant to determining whether the Commissioner’s performance of his duty to inquire into the subject-matter of the Special Commission was performed unreasonably, in the sense of being undertaken in such a way that the relevant outcomes of the inquiry wanted a probative basis.

5. That secondary question arises because the Attorney-General’s Response to the Summons contains no more than general denials of the contentions in the Summons relating to wastage and live baiting. The Response leaves open the possibility that the Attorney-General may ultimately submit that the plaintiff has not proved unreasonableness in relation to these matters, because it has not been proved that there was no probative basis for the relevant findings in the material which was before the Commissioner (putting to one side whether s 9(3) of the SCI Act was breached), possibly having regard to material other than that on which the Commissioner explicitly relied.”

48. Mr Bennett argued that the contents of the transcript of a private hearing could inform the admissibility of evidence given in the course of an examination at a public hearing. He gave the following example. Suppose that witness X gave the following evidence at a public hearing: “Live baiting was conducted at Premises Y”. Suppose, however, that witness X confirmed in private hearing that he had never seen live baiting being conducted at Premises Y but had heard from an unnamed source that it had been conducted there. Mr Bennett submitted that the evidence at the public hearing would be inadmissible as hearsay evidence, but that this would not be apparent from the transcript of the public hearing and could only be determined by reviewing the transcript of the private hearing.

49. I reject the plaintiff’s argument that it requires the private hearing transcripts in order to work out whether the witnesses ought to have been permitted to give evidence at the public hearing, by reason of the qualified prohibition in s 9(3) of the Act. Whether or not the witnesses listed in category (a) gave evidence at a private hearing that would not have been admissible in civil proceedings is not to the point and does not affect the question whether the evidence adduced at the public hearing ought to have been received in evidence having regard to the terms of s 9(2). Although there were occasions in the public examination of the witnesses named in the motion where their evidence in the private hearings was referred to, this does not support an order for discovery of such of the private hearing transcript that was not expressly incorporated in the public hearing transcripts. The example given by Mr Bennett which is set out above could provide some foundation for an argument that the private transcripts might, in certain confined instances, be relevant. However, Mr Bennett did not accept Mr Free’s indication to point to anything in the transcripts of the public hearings which were tendered on the motion which indicated such potential relevance. Having read these extracts and summarised them above, I do not discern any evidence which would fall into the same category as the example given. In these circumstances I regard the possibility that the evidence given in a private hearing might illuminate the admissibility of evidence given by the same witness at public hearing as no more than speculative.

50. The plaintiff also argued that it requires the private hearing transcripts to ascertain whether they contain material which is inconsistent with the inferences which the Commissioner drew from the evidence. The argument that it was unreasonable for the Commissioner to rely on what a particular witness said in the public hearing because the witness said something contradictory in a private hearing is not reflected in the summons; nor would it appear to be an available argument in proceedings for judicial review.

51. Further, as the Commissioner did not rely on evidence given at private hearings, except in so far as it was tendered at public hearings, there is no basis for ordering its discovery on that ground.

52. I note for completeness that the defendant did not raise any issue of oppression with respect to category (a).

Revised category (b) in the further amended notice of motion

53. The plaintiff seeks, in revised category (b): “all documents specifically referred to in Chapter 11” of the report. Mr Free indicated that the defendant was willing to provide such of the documents in that category which the plaintiff did not already have in its possession. I understand from the plaintiff’s submissions that it does not seek documents which are already in the public domain by having been posted onto the Commission’s public website.

54. Where a notice to produce or subpoena could serve the applicant’s forensic purpose just as well, these procedural tools are generally to be preferred to discovery, which tends to be, by its nature, more costly. In the present case I am not persuaded that there is any forensic utility in ordering discovery of the documents in revised category (b) since production of the documents referred to in Chapter 11 can be obtained directly by notice to produce, which in my view is the preferable course.

Categories (b) and (c) of the amended notice of motion: all written submissions by Greyhounds Australasia, Greyhound Racing NSW, the RSPCA and Animals Australia and all other documents provided by those organisations relating to wastage and live baiting

55. Categories (b) and (c) of the amended notice of motion are relevant only for the purposes of considering the question of costs.

56. As is apparent from the text of the extract from Chapter 2 of the report set out above; the correspondence from the defendant’s solicitors dated 27 September 2016; and Mr Free’s written submissions, the report identified the documents that were relied upon with respect to wastage and live baiting. Accordingly, the plaintiff has, or can seek access to, these documents with a view to investigating whether the findings are supported by the documents, or whether there is any unreasonableness or irrationality associated with the findings in light of the documents identified. Whatever was said, and by whom and whatever else was provided to the Commission would seem to be irrelevant to the challenge made to the report.

57. Moreover, even if the documents provided by the named organisations relating to wastage and live baiting were relevant (and I am not satisfied that they are), the documents amount to around 130,000 pages. The cost of reviewing such documents before they are discovered would be excessive and wholly disproportionate.

58. The plaintiff, in its written submissions, sought to support its claim (now abandoned) that the documents in category (c) are relevant by foreshadowing that it will seek to adduce expert evidence in the form of statistical analysis of primary data about wastage which is derived from the primary source material produced to the Commissioner. For present purposes, it is not necessary to determine how such analysis could be germane to the question whether the report was the product of jurisdictional error. However, because of the plaintiff’s reliance on the decision of the Federal Court in Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 it is necessary to address it.

Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd

59. Austral Fisheries Pty Ltd sought judicial review of a decision of the Minister to determine a plan of management for a fishery. As the decision was found to be a legislative one (since the plan of management was held to be delegated legislation), the court’s jurisdiction arose under s 39B of the Judiciary Act 1903 (Cth) to restrain the Minister from implementing the plan and a declaration that it was ultra vires by reason of its manifest unreasonableness. The plan incorporated a formula for the identification and allocation of units which was shown to be based on a statistical fallacy. The units were significant in that the legislative power conferred on the Minister by the Fisheries Act 1952 (Cth) was expressed in terms which referred to units. Section 7B(5) provided:

“Where, in a plan of management for a fishery, the Minister determines the fishing capacity permitted for the fishery, then, without limiting the generality of sub-section (2), the plan of management may make provision for and in relation to —

(a)   the division of the fishing capacity permitted for the fishery into units (in this section referred to as ‘units of fishing capacity’);

(b)   the allocation to persons of units of fishing capacity in the fishery;

(c)   the assignment of units of fishing capacity to boats, and the holding, and cessation of holding, of units of fishing capacity in relation to boats;

(d)   requiring units of fishing capacity to be held in relation to boats;

(e)   the determination of the number of units of fishing capacity to be held in relation to boats;

(f)   the holding of units of fishing capacity that are not assigned to a boat, including the number of such units of fishing capacity that may be held by a person and the period during which such units of fishing capacity may be held;

(g)   the duration, variation, re-assignment, transfer, surrender, replacement, renewal of allocation, suspension and cancellation of units of fishing capacity;

(h)   the recording of the allocation, assignment, holding, cessation of holding, variation, re-assignment, transfer, surrender, replacement, renewal of allocation, suspension and cancellation of units of fishing capacity and the manner in which such recording is to be evidenced, including the issue, recall and replacement of certificates and other documents evidencing such recording; and

(j)   the reconsideration of decisions made under the plan of management.”

60. The primary judge, O’Loughlin J, was satisfied by the unchallenged evidence of Dr Nicholls, an expert statistician, that the formula in the management plan contained a statistical fallacy which produced a result and did not rationally connect the catch history and financial involvement of an individual within a particular fishery area with the number of units to which that individual would be allocated under the plan. The primary judge was satisfied that the results of the plan were so anomalous as to warrant “judicial intervention to redress an understandable sense of injustice”: Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy (1992) 37 FCR 463 at 477.

61. The Minister’s appeal was dismissed by the Full Federal Court: Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (Lockhart, Beaumont and Hill JJ). The relevant juridical basis for the result was articulated by Lockhart J at 384 in the following terms:

“Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended when authorising the subordinate legislative authority to enact laws.”

62. In their joint judgment, Beaumont and Hill JJ said, at 400-401:

“The method adopted in the Plan will only be beyond the scope of s 7B(5) if no reasonable person could ever have devised it. This is a stringent test, but the learned primary judge concluded that, in the present circumstances, it had been satisfied. . . .

In substance, the judge held that the relevant provisions of the Plan were capricious and irrational, such that no reasonable person could ever have devised it. This was an extreme conclusion. But it was justified on the expert evidence of Dr Nicholls. We are not persuaded that, in principle, his Honour was wrong in that conclusion. In the absence of evidence or a process of reasoning to propound any rational basis to warrant the adoption of a statistically flawed formula for the calculation of catch history over the five year period, it was, we think, reasonably open to his Honour to conclude that the relevant provisions of the Plan were beyond power and thus void. No case for interfering with that conclusion has, in our view, been made out.”

63. Dr Nicholls’ evidence was relevant in the challenge to the management plan because it demonstrated the irrationality of the formula in the plan which produced anomalous results.

64. By contrast, in the present case, the plaintiff (before its recent concession) sought discovery of documents produced under order to the Commission with a view to obtaining expert evidence to show that the Commissioner’s process of reasoning with respect to wastage was, as a matter of statistics, flawed or irrational. The plaintiff also sought this material in order to perform a further statistical analysis of the data to demonstrate the unreasonableness of the Commissioner’s findings. Discovery is not required for this process since the defendant has agreed to produce any document identified in the report (which is not already in the public domain and available from its website) as having been relied upon to support the Commissioner’s finding.

65. Whether what the plaintiff proposes by way of expert evidence ought be allowed in proceedings for judicial review based on jurisdictional error does not arise for determination in the discovery motion. I note for completeness that no order for expert evidence was pressed at the hearing on 14 December 2016 and no determination is required to be made whether it would be allowed, since this is a matter to be debated, if need be, at a further directions hearing after the relevant documents have been produced by the defendant in answer to a notice to produce served by the plaintiff.

Costs

66. The substantive issues that needed to be determined at the hearing of the further amended notice of motion were fewer than those raised by the motion as originally filed and amended. Mr Bennett contended that the plaintiff abandoned (b) and (c) only by reason of Mr Free’s confirmation of the defendant’s position that she would rely solely on material referred to in the report to support the Commissioner’s findings and recommendations. He submitted that the plaintiff was justified in pressing for discovery in the absence of this confirmation. He also submitted that the plaintiff’s concessions since the motion was filed on 27 September 2016 reflected its preparedness to be reasonable.

67. In my view, it was plain from the text of the report and the defendant’s solicitor’s letter that preceded the filing of the notice of motion that the basis for the Commissioner’s findings comprised the material identified in the report. If there was any doubt about it (and I do not accept there was), Mr Free’s written submissions further confirmed it. Thus, the evidence and submissions relating to categories (b) and (c) need not have been prepared at all. The revised category (b) could readily have been the subject of a notice to produce and will, as I understand it, be dealt with by a notice to produce to be served as soon as the plaintiff can identify which of the documents referred to in the report it needs.

68. The plaintiff has not succeeded with respect to category (a), which was pressed, as it has failed to persuade me that documents falling within category (a) would be relevant to a fact in issue. The plaintiff has abandoned the original categories in (b) and (c). Revised category (b) does not require discovery since it can be dealt with more efficiently by the service of a notice to produce. The plaintiff has been wholly unsuccessful. In these circumstances, the plaintiff ought be obliged to pay the defendant’s costs of the motion.

Orders

69. For the foregoing reasons, I make the following orders:

1. Dismiss the further amended notice of motion filed on 14 December 2016.

2. Order the plaintiff to pay the defendant’s costs of the motion.

**********

Decision last updated: 23 April 2018