Victorian Taxi Families Inc and Redfield Court Holdings Pty Ltd v Commercial Passenger Vehicle Commission

[2020] VSC 762

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

GENERAL LIST

S CI 2017 03730

VICTORIAN TAXI FAMILIES INC.	Appellant
v
COMMERCIAL PASSENGER VEHICLE COMMISSION	Respondent
- and -
COMMERCIAL PASSENGER VEHICLE COMMISSION	Appellant
v
REDFIELD COURT HOLDINGS PTY LTD	Respondent

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JUDGE:	Cavanough J
WHERE HELD:	Melbourne
DATE OF HEARING:	25, 26 July and 20 August 2019. Last written submissions received 5 September 2019.
DATE OF JUDGMENT:	17 November 2020
CASE MAY BE CITED AS:	Victorian Taxi Families Inc and Redfield Court Holdings Pty Ltd v Commercial Passenger Vehicle Commission
MEDIUM NEUTRAL CITATION:	[2020] VSC 762

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DISCOVERY OF DOCUMENTS – Preliminary discovery – Jurisdiction and principles – Whether preliminary discovery available in relation to putative claim for bare declarations – Whether bare declaration amounts to relief ‘from’ a person – Principles relating to prospects of success of putative claims – Assessment of applicants’ foreshadowed claims – Utility of proposed declarations – Declarations in matters of public interest – Public authority apparently purporting to dispense with statutory provisions – Standing of industry representative body to seek declarations – Additional putative claim for damages for negligence – Novel duty of care alleged – Whether documents sought may be relevant and helpful – Decision of Associate Judge varied on appeal – Preliminary discovery granted - Transport (Compliance and Miscellaneous) Act 1983 (Vic) Part VI Division 5 (as in force in 2016) – Transport Integration Act 2010 (Vic) Part V Division 3 (as in force in 2016) – Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 20, 38, 39 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 32.05.

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APPEARANCES:	Counsel	Solicitors
For Victorian Taxi Families Inc and Redfield Court Holdings Pty Ltd	H R Carmichael	Corrs Chambers Westgarth
For the Commercial Passenger Vehicle Commission	J D Pizer with E A Gisonda	In-house

HIS HONOUR:

An application for preliminary discovery of documents about commercial passenger vehicle licensing is decided and each party appeals: the main issues on appeal and, in the broad, their determination

1. Appeals under r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’) have been brought to the Court against an order made on 5 April 2019 by Associate Justice Derham on an application for preliminary discovery pursuant to r 32.05 of the Rules. There are two formal appeals and, it seems, a de facto cross-appeal.

1. The application for preliminary discovery was made by originating motion by two parties together, with joint legal representation.  The first applicant was Victorian Taxi Families Inc (‘VTF’), an incorporated association of some 700 members being principally persons or other entities with ownership interests in taxi-cabs or taxi-cab licences.  The association had a particular focus of protecting and advancing the interests of those who, at the relevant time, owned a type of statutory taxi-cab licence known as a perpetual licence.  The other applicant was Redfield Court Holdings Pty Ltd, which was the owner of two taxi-cab perpetual licences.  Redfield had purchased one of the licences in 1996 for $295,000.00 and the other in 2006 for $450,000.00.  Redfield had, in effect, leased the licences to others in return for an income stream.  Perpetual licences were listed on the Bendigo stock exchange.  In about 2010 they reached traded values of as much as $500,000.00.  They were later revoked by statutory amendments, in circumstances to be mentioned.  Redfield was and is a member of VTF.  Redfield’s sole controller, Mircina Mayas, has been a member of the executive committee of VTF at all relevant times.  VTF and Redfield continue to have joint legal representation.  For convenience, when referring to VTF and Redfield together, I will usually call them the applicants, even though, formally, Redfield is the respondent in one appeal and VTF is the appellant in the other.

1. The named respondent to the (original) application for preliminary discovery was the Taxi Services Commission, the regulator of the Victorian taxi and hire car industry pursuant to the Transport Integration Act 2010 (Vic) (‘TI Act’) and the Transport (Compliance and Miscellaneous) Act 1983 (Vic) (‘T(CM) Act’).  By the time of the order of Associate Justice Derham, the name of the respondent had been changed by statutory amendment to Commercial Passenger Vehicle Commission.  For convenience, I will refer to it (in relation to all relevant periods) as the Commission.

1. By the originating motion, which was filed on 15 September 2017, the applicants listed, in an annexure, the categories of documents of which they sought discovery from the Commission.  Broadly speaking, the documents sought related to three interconnected complaints that the applicants had against the Commission, namely complaints that the Commission, contrary to what was said to be its proper statutory role, had, in the first place, failed to act sufficiently against illegal competition from rideshare service providers such as UberX and had then adopted a policy of taking no action at all against illegal ridesharing services; that, in connection with proposed statutory reforms to the commercial passenger vehicle industry that had not yet been enacted, the Commission had been party to allegedly unlawful dispensations from, and rebates or refunds of, statutory licencing fees applicable to licence holders other than perpetual licence holders, with alleged detrimental effects on the value and income-earning capacity of perpetual licences; and that the Commission had undervalued perpetual licences in connection with proposals as to the amount of government financial assistance that would be offered to the holders of perpetual licences in relation to the revocation of the licences by the proposed statutory reforms.

1. Many issues were debated before Associate Justice Derham, and at great length. In the end, his Honour held that Redfield should be given preliminary discovery by the Commission of most of the categories of documents in question, but that VTF was not entitled to any preliminary discovery. Under r 32.05, preliminary discovery is available where, in short, (i) there is reasonable cause to believe that the applicant may have the right to obtain relief in the Court from a person; (ii) the applicant needs more information to decide whether to commence a proceeding to obtain that relief; and (iii) there is reasonable cause to believe that the person has relevant documents that would be of assistance to the applicant in making the decision. The applicants had submitted to Associate Justice Derham that they may have the right to obtain (among other things) declaratory relief against the Commission in relation to the impugned conduct of the Commission. Upon being requested by his Honour to indicate in writing the form or terms in which such declaratory relief might be granted, they put forward six suggested forms of declaration. However, his Honour ultimately determined that VTF (as distinct from Redfield) would not be accorded standing to seek any of the suggested declarations in any proceeding. In addition, his Honour considered that the suggested declarations would be refused to both VTF and Redfield for want of foreseeable consequences for the parties, save that a modified form of one particular suggested declaration might be available to Redfield (as distinct from VTF). However, his Honour considered that such a declaration could only be available to Redfield as relief incidental to another claim suggested to be available to Redfield, namely a claim for damages for negligence. Further, in relation to some, but not all, of the suggested forms of declaration, his Honour was of the view that the applicants did not need any documents to decide whether or not to pursue them.

1. On the other hand, his Honour found that Redfield may have the right to obtain damages from the Commission in an action for negligence, and to obtain the abovementioned related declaration.  While his Honour could see no relevance, in that regard, in the first two categories of documents sought, he indicated that, subject to a need to deal with overlap between some of the other categories and to deal with undue breadth in the wording of some categories, and subject to the need to develop an appropriate form of order, the documents in the other categories should be provided by the Commission to Redfield by way of preliminary discovery. 

1. His Honour’s conclusions and reasons were set out in a comprehensive judgment of some 108 pages, 288 paragraphs and 387 footnotes delivered on 12 October 2018.[1]  In the judgment, his Honour indicated that further submissions would be required in relation to the need to deal with the outstanding points just mentioned.[2]  The parties apparently proceeded to make submissions as directed by the Court.  Neither the Court file nor the (1317 page) appeal book contains copies of the submissions.  Nor did his Honour publish any further reasons.  However, it seems that an issue must have arisen about the links between the two applicants, and about the fact that the same lawyers were acting for both applicants.  That appears from the terms of the order that was finally made on 5 April 2019.  In the order it is recorded that the second applicant (Redfield) undertook not to disclose to any member of the first applicant (VTF) any documents produced to it by the respondent (the Commission) pursuant to the order.  That restriction presumably extended to preclude disclosure to VTF itself or to VTF’s lawyers acting as such.  The undertaking having been given, the Commission was ordered to make discovery of all documents falling within the categories described in annexure A to his Honour’s order.  That annexure lists six categories of documents.  In substance, it represents a refined version of the last seven categories (numbered three to nine) as set out in the annexure to the originating motion.  By other paragraphs of the order, VTF’s application for preliminary discovery was dismissed; directions were given for the filing and service of submissions on costs; costs were reserved; and liberty to apply was reserved.

   [1]A revised version of his Honour’s judgment was published on 31 May 2019: Victorian Taxi Families Inc. & Anor v Taxi Services Commission [2018] VSC 594 (‘Victorian Taxi Families v Taxi Services Commission’).

   [2]Ibid [287].

1. Save for one fairly minor correction that was, I believe, ultimately agreed during the appeals,[3] there is no challenge to the judgment of Associate Justice Derham insofar as it sets out (in detail) the regulatory and factual background, the procedural history, the evidence, the descriptions of the categories of documents sought and the terms of the suggested forms of declaration.  In those circumstances, and in order to confine the length of my judgment, I will assume that the whole of his Honour’s judgment has been read and absorbed.  It will, however, be necessary or desirable to reproduce some parts of the judgment and to summarise or otherwise refer to some other parts.

   [3]This related to the date from which rebates and refunds of licensing fees were first made available. See paragraph [68] below.

1. The Commission was the first to file a notice of appeal.  The sole named respondent is Redfield.  Soon after, VTF filed a notice of appeal.  The sole named respondent is the Commission. 

1. The Commission appeals against so much of the order as required the Commission to make preliminary discovery to Redfield.  Redfield has filed a notice of contention in the Commission’s appeal.  It states on its first page that Redfield ‘does not seek to cross-appeal from any part of the judgment’.[4]  However, it also states, in paragraph 8 under ‘Grounds’,[5] that his Honour ‘ought to have ordered that the [Commission] discover the documents in Annexure A to Redfield’s Original Motion [sic], identified in paragraph 1, 2 and 8’.  The reference in the notice of contention to paragraph 8 of Annexure A to the originating motion must be a mistake, because the terms of that paragraph were in fact reproduced in the annexure to his Honour’s order, as paragraph 6 thereof, i.e. as describing a category of documents to be discovered by the Commission to Redfield.  So far as the complaint about omitting to order discovery of the documents listed in paragraphs 1 and 2 of the annexure to the originating motion is concerned, the appeals appeared to proceed, at least initially, on a tacitly agreed basis that both Redfield and VTF were (procedurally) free to challenge the determination of the Associate Judge not to include those categories in the documents to be discovered.  The matter appeared to be so proceeding notwithstanding that, in the notice of appeal filed by VTF, the description of the orders sought suggested that VTF, for its part, was content to have discovery of only the documents that had been described in annexure A to his Honour’s judgment.[6]  In any event, in his written and oral submissions, counsel for the applicants submitted from time to time, in effect, that the original categories 1 and 2 were proper subjects for preliminary discovery.  Counsel for the Commission did not object to those submissions being made.  However, on the last day of the oral hearings, after relevant discussions, I said to counsel for the applicants that I could not, at that time, see what categories 1 and 2 had to do with anything.  In response, counsel said: ‘Well, I don’t seek to press that, Your Honour.’[7]  That appeared to amount to an abandonment by the applicants of categories 1 and 2.  Despite this, in a certain post-hearing written submission,[8] counsel for the applicants made reference, directly[9] and indirectly,[10] to categories 1 and 2. It is not clear to me whether counsel was saying or implying that, as far as his clients were concerned, categories 1 and 2 were still in dispute. Out of an abundance of caution, I will assume that those categories are (legitimately) still in dispute. Accordingly, I will assume that they form part of the subject matter of VTF’s appeal and the whole of the subject matter of a de facto cross-appeal by Redfield. Ultimately, however, as will be seen, I have concluded that the documents in categories 1 and 2 are not required to be discovered to either of the applicants.

   [4]Appeal Book 3.8 (‘AB’).

   [5]AB 3.10.

   [6]AB 3.6.

   [7]Transcript of Proceedings, Victorian Taxi Families Inc v Commercial Passenger Vehicle Commission (Supreme Court of Victoria, S CI 2017 03730, Cavanough J, 25-26 July and 20 August 2019) 481 (‘Transcript’).

   [8]Joint note to the Court dated 4 September 2019 comprising a section from the Commission entitled ‘Commission’s Answer to Question Asked on Day 3’ [1]-[5] and a section from the applicants entitled ‘The position of Redfield (and relevantly of VTF)’ [6]-[12] (‘Joint note dated 4 September 2019’).

   [9]In paragraphs 11(a) and 12(c).

   [10]In paragraph 12(a).

1. It is tolerably clear from Redfield’s notice of contention in the Commission’s appeal[11] that Redfield contends that his Honour erred by not upholding Redfield’s submission that its application for preliminary discovery was supported not only by its putative negligence claim but also, and independently, by its putative claim for a declaration or declarations based on public law considerations.  Accordingly, it is clear enough that Redfield is not confined to its putative negligence claim in these appeals.

   [11]Notice of contention dated 11 July 2019, esp at paragraphs [3], [4]: AB 3.9. See also the oral submissions by junior counsel for the Commission at Transcript 483-486. I note that, by leave (Transcript 324-325) the Commission filed a notice of contention in VTF’s appeal (AB 3.12-3.13). It is unnecessary to refer further to that document. The contentions it contains were part and parcel of the arguments before me and have been taken into account in my consideration of the case generally.

1. On the second day of the oral hearing before me, senior counsel for the Commission raised a point which, if a good point, would have meant that this Court has no jurisdiction under r 32.05 to order preliminary discovery in aid of a putative claim for purely declaratory relief.[12]  The point was not raised below and was really only raised in passing before me.  Nevertheless, because it would go to jurisdiction, I have considered it in accordance with the Court’s ‘first duty’.[13]  As will be seen, I do not accept the point.  In my view, the Court does have the jurisdiction in question.

   [12]Transcript 249-253.

   [13]National Australia Bank Limited v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543 [7] (Allsop CJ) (‘NAB v Nautilus Insurance’).

1. Principally on the basis of arguments and authorities that were not included amongst the enormous raft of arguments and authorities that were put to Associate Justice Derham, I consider that VTF’s appeal should be allowed insofar as it challenges the complete denial to VTF of any grant of preliminary discovery.  I consider that the Commission’s appeal should be dismissed.  I consider that Redfield’s apparent de facto cross-appeal should also be dismissed.  In the result, the Commission will be required to give preliminary discovery to both VTF and Redfield of, only, the documents listed in the annexure to the order of Associate Justice Derham.  The non-inclusion of the documents in categories 1 and 2 will stand (as against both applicants).

1. In summary, my view is that, notwithstanding the restraint that must be exercised in appeals relating to matters of practice and procedure (such as this matter),[14] sufficient has been shown to warrant the allowing of VTF’s appeal (to the extent mentioned above).  In his judgment, the Associate Judge dealt admirably with the bewildering mass of material with which he was confronted.  However, it now emerges that a different view should be taken of the two main points by reference to which preliminary discovery was denied to VTF, namely the point relating to VTF’s potential standing and the point (which could have affected both applicants) relating to whether a potential declaration would have any foreseeable consequences for the parties. 

   [14]See Glezer v Deals.com.au [2014] VSC 202 [13]-[14] (Vickery J).

1. As to the first point, in short, it now appears to be sufficiently arguable that VTF would have standing to seek an appropriate declaration based on its own activities and interests in combination with its role as a representative of its members, many of whom (including Redfield) would, as the Commission concedes, have standing in their own right to seek a declaration.[15]

   [15]See Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552, 558; The Pharmacy Guild of Australia v Ramsay Health Care Ltd [2019] NSWSC 1045 [97]–[102] (and cases there cited); compare at [173] (Ward CJ eq). See further below.

1. As to the second point, in short, it now appears to be sufficiently arguable that an appropriately framed declaration would have foreseeable consequences for the parties, or at least that it would fall into the well-recognised category of cases where a declaration may be appropriate to mark the upholding of a moving party’s contentions against an opposing party in a matter of substantial public importance, or in order to serve the public interest, even though the relevant events all lie in the past.[16]  As will be seen, the critical thing in this regard is that there is reasonable cause to believe that the alleged conduct of the Commission, as a public authority, may have conflicted with foundational legal norms.[17]  

   [16]See ACCC v Eurong Beach Resort [2005] FCA 1134 (Kiefel J) (‘Eurong’); Heydon, Leeming and Turner, Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (LexisNexis, 5^th ed, 2014) [19–300] and cases there cited.  See further below. 

   [17]Referred to in A v Hayden (1984) 156 CLR 532, 580–581 (Brennan J) (‘A v Hayden’). See further below.

1. In those circumstances it seems to me that, although some or even all of the potential declarations that have been put forward by the applicants may be inapposite in form, nevertheless, on the principles applicable to applications under r 32.05, there is reasonable cause to believe that both VTF and Redfield may have the right to obtain, as against the Commission, a relevant declaration, being a declaration sufficiently related in substance to one or more of the suggested forms of declaration.

1. Further, I am satisfied that the documents identified in the annexure to the Associate Judge’s order may be of assistance to VTF and Redfield in relation to deciding whether to bring an appropriate proceeding.

1. Further again, even if (as the Associate Judge held) only Redfield, and not VTF, had identified a possibly viable claim for substantive relief in its own right, nevertheless, in view of the close links between Redfield and VTF (including through the membership of VTF’s executive committee and through the applicants’ joint legal representation to date), and in view of the proposition contemplated during the hearing before me[18] that a representative or class action may be commenced in due course (with the involvement of VTF and perhaps with Redfield as the lead plaintiff), it would seem idle and awkward, and out of harmony with the Civil Procedure At 2010 (Vic), to deny the documents to VTF and to require an undertaking of the kind referred to in the Associate Judge’s order.[19]

   [18]Transcript 267.

   [19]Compare Gibraltar Betting & Gaming Association Ltd v Secretary of State for Culture, Media & Sport [2014] EWHC 3236, 59-60 (Green J) (‘Gibraltar’). See further below.

1. Conversely, if VTF is entitled to preliminary discovery of the documents in question on the basis that it may have the right to obtain a suitable declaration or declarations, then Redfield (whose standing is not relevantly in dispute[20]) would plainly have the same entitlement.  In my view, that is in fact the position.  Hence, strictly speaking, it is unnecessary to decide whether Redfield’s entitlement to preliminary discovery is further supported by its putative claim for damages for negligence.

   [20]Transcript 258 (line 30) - 259 (line 2), 266 (line 27) – 267 (line 19), 486 (lines 2-3).

1. In any event, I see no sufficient reason to disagree with the conclusion of Associate Justice Derham to the effect that Redfield should be given preliminary discovery by reference to its putative claim for damages for negligence.  His Honour did not err in determining that there was reasonable cause to believe that Redfield may have the right to obtain damages for negligence from the Commission (and a related declaration).  As I will further explain, I do not accept the Commission’s argument to the effect that Redfield’s prospects of establishing (all of) duty, breach and causation are too remote even for the limited purposes of an application for preliminary discovery. 

The jurisdictional point

1. Rule 32.05 of the Rules provides:

Where—

(a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description the applicant has ascertained;

(b) after making all reasonable inquiries, the applicant has not sufficient information to enable the applicant to decide whether to commence a proceeding in the Court to obtain that relief; and

(c) there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had in that person's possession any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist the applicant to make the decision—

the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c).

1. As mentioned above, on the second day of the oral hearing before me senior counsel for the Commission suggested that r 32.05 may not be applicable where the putative claim relied on was a claim for purely declaratory relief.[21] It was said that the point was being raised by counsel ‘as officers of the Court’. There was no application to amend the Commission’s notice of appeal. It was said that the critical words in r 32.05(a) were ‘relief from a person’ and that those words ‘may not embrace declaratory relief’. Reference was made to the nature of a declaratory judgment as expounded in paragraph 1-02 of Zamir & Woolf: The Declaratory Judgment,[22] namely that a declaratory judgment does not require a defendant to do something or not do something; that it pronounces upon a legal relationship but does not contain any order which can be enforced against the defendant. According to counsel, that supports the proposition that, properly understood, a declaration is not relief ‘from a person’. It is relief. It is obtained from the Court. But it is not relief ‘from’ a person. It was said that a contrast could be drawn with other rules that use the language of obtaining relief in the Court against a person, or simply the language of obtaining relief in the Court. Rule 32.06 was suggested as an example, but no other suggested examples were nominated. It was said that such a difference ‘may’ be deliberate. Counsel acknowledged being unaware of any other case in which an argument to this effect had been advanced. Counsel also fairly acknowledged that there was (binding) authority to the effect that r 32.05 should be interpreted beneficially (or benevolently).[23]  On the other hand, counsel said, a beneficial or liberal interpretation does not justify an interpretation that is ‘unreasonable and unnatural’.[24] I inquired of counsel about the source of r 32.05. I noted that in Williams, Victorian Civil Procedure,[25] it is said that the procedure under the rule is derived from the procedure for preliminary discovery established in England.  Counsel were given leave to return to the history of the rule at a later time.  For the next hearing, the Commission produced a document which contained some additional detail about the corresponding English provisions.[26]  However, this threw no new light on the proper interpretation of the rule.  Counsel for the Commission said no more about the jurisdictional point.  Counsel for the applicants submitted that the point should be rejected.[27] He submitted that the suggested interpretation would be quite out of line with the approach to r 32.05 taken by countless judges since it was introduced in 1986, and that, contrary to s 35 of the Interpretation of Legislation Act 1984 (Vic), the suggested interpretation would not promote the purpose or object underlying the Rules as a whole or underlying r 32.05 in particular.

   [21]Transcript 249-253.

   [22]Woolf et al, Zamir & Woolf: The Declaratory Judgment (Sweet & Maxwell, 4^th ed, 2011) [1-02].

   [23]See Schmidt v Won [1998] 3 VR 435 (Court of Appeal) (‘Schmidt v Won’). See further below.

   [24]Referring to IW v City of Perth (1997) 191 CLR 1, 12 (Brennan CJ and McHugh J).

   [25]At [32.05.0].

   [26]Note entitled ‘Respondent’s Answers to Questions Asked’ dated 19 August 2019 [3]-[10].

   [27]Transcript 482-483.

1. I accept the applicants’ submissions in this regard.  It would be a remarkable thing if, at this late stage, it was to be found that preliminary discovery is unavailable in relation to the whole of the ‘popular remedy’[28] of declaratory relief, a remedy of ‘enormous scope’.[29]  The very great width of the remedy has been recognised, both in public law[30] and in private law,[31] for decades.

   [28]Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 2017, 6^th ed) [15.100].

   [29]Ibid.

   [30]Ibid, and cases there cited. See also Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581-582 (‘Ainsworth’).

   [31]Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, 437; NAB v Nautilus Insurance (n 13) [101] (Allsop CJ).

1. The interpretation suggested by senior counsel for the Commission attributes an unduly narrow, and otherwise inappropriate, sense to the word ‘from’ in r 32.05(a). That sense seems to involve the notion that something must pass ‘from’ the defendant to the plaintiff. Perhaps senior counsel was envisaging claims for debt or damages or for delivery up of land or goods. But, even in relation to such claims, commonly nothing passes ‘from’ the defendant to the plaintiff until after the case ‘in the Court’ is over. The actual payment of a money judgment or the actual delivery up of land or goods often does not, itself, answer the description of obtaining ‘relief in the Court from a person’. This suggests that, despite the use in r 32.05(a) of ‘from’, the rule is not limited to claims of these kinds – rather, that the rule is directed to any situation or relationship in relation to which the person referred to in the rule as the applicant may be able to obtain in the Court a judgment or order of some kind against another identified person. Any such judgment or order will represent relief ‘from’ the other person in the sense that the other person must submit to it. An order made by the Court on an inter partes application for a declaration – whether the declaration sought be granted or refused – is just as much a judicial act as a judgment for debt or damages or for the delivery up of land or goods.  The judgment or order binds the parties.  It does so by way of res judicata and issue estoppel.

1. As mentioned above, senior counsel for the Commission drew a distinction between a declaration and an order that requires the defendant to do something or not do something.  But injunctions are orders of the latter kind. And, commonly, they do not require that anything pass ‘from’ the defendant to the plaintiff in the narrow sense presently suggested.  Indeed, a prohibitory injunction requires the defendant to not do something. Are potential claims for injunctions to be excluded from consideration under r 32.05? Surely not. And if not, what proper distinction can be drawn between a prohibitory injunction and, say, a bare declaration that the defendant is not entitled in law to do something (in the future)?

1. Preliminary discovery has been available in Victoria for 34 years, and in all or most Australian jurisdictions for about the same period.  If the suggested interpretation were a good answer to a claim for preliminary discovery, it is to be wondered why no counsel or court has ever previously suggested it.  It is true that the words of the relevant provisions in other jurisdictions have sometimes been different.  But, for many years, the expression ‘to obtain relief in the Court from a person’ was part of the corresponding Federal Court Rule, namely Order 15A r 6, at least.  In Rush v Commission of Police,[32] decided in 2006, Finn J dealt with an application under that Federal Court Rule based on, relevantly, a foreshadowed application for a bare declaration on public law principles.  For various reasons the application for preliminary discovery was not granted, but it was not suggested to or by Finn J that a right to a declaration was not a right to obtain relief in the Court ‘from’ a person.

   [32](2006) 150 FCR 165, 181 [57] (Finn J).

1. I see no force in the suggested contrast with r 32.06. Indeed, it seems to me that r 32.06 assumes that the words ‘from a person’ in r 32.05 have the same meaning as the expression ‘against a person’ in r 32.06.  So, if anything, r 32.06 tends against the suggested jurisdictional difficulty.

1. In my view, the word ‘from’ in r 32.05 is used in the sense of ‘as against’. It simply envisages that, in the putative proceeding, the ‘person’ in question would stand in the relation of defendant to the (erstwhile) applicant for preliminary discovery as plaintiff.

1. I reject the suggested jurisdictional point.

Principles relating to preliminary discovery

1. In a section of his judgment entitled ‘Preliminary discovery – applicable principles’, after setting out the terms of r 32.05, Associate Justice Derham proceeded to discuss and summarise the authorities on preliminary discovery in a most helpful fashion. That part of his Honour’s judgment reads as follows:[33]

   [33]Footnotes included but renumbered.

61 There are thus three matters that the applicants must satisfy:

(a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court against the [Commission];

(b) after making all reasonable enquiries, the applicant has not sufficient information to enable the applicant to decide whether to commence a proceeding against the [Commission] to obtain that relief; and

(c) there is reasonable cause to believe that the [Commission] has or is likely to have had in its possession any document relating to the question whether the applicant has the right to obtain that relief and that inspection of the document by the applicant would assist the applicant to make the decision (whether to commence proceedings to obtain that relief).

62 In Schmidt v Won,[34] Ormiston JA, with whom Charles and Batt JJA agreed, explained the purpose of, and the Court’s approach to, the rule:

[34]Schmidt v Won (n 23).

The rule, first introduced in 1986, should be construed benevolently because its intention was both to assist claimants without sufficient, precise information to launch an action and to prevent the bringing of speculative suits. Applications, however, must not be based upon “mere hunches” or such flimsy foundations as will not satisfy the requirement that “reasonable cause” should be shown for the necessary belief. That is not to say, however, that some form of “fishing” enquiry is not justified under the rule; indeed it is the very purpose of the rule to permit an enquiry of this kind, if the required conditions are made out.[35]

[35]Ibid 445 (citations omitted).

63 In Beston Parks Management Pty Ltd v Sexton (‘Beston Parks’),[36] Hollingworth J said in relation to the application of r 32.05:[37]

[36][2008] VSC 392 (‘Beston Parks’).

[37]Ibid [52]–[53] (citations omitted).

The following general principles are not controversial. The rule should be construed benevolently, because it is intended to assist an applicant who does not have sufficient, precise information to commence a proceeding, and to prevent the bringing of speculative suits. It must be given the fullest scope its language will reasonably allow.

It is not necessary to show precisely what cause of action the applicant may have, merely that the facts are such from which it may reasonably be believed that the applicant may have a right to obtain relief. The word ‘may’ indicates that the putative belief does not have to amount to a firm view that there is a right to relief. Although some ‘fishing’ enquiry is permitted, a ‘flimsy foundation’ or ‘mere hunch’ will not be sufficient to constitute reasonable cause. An applicant does not have to prove that there will be, only that there may be, a real benefit from making the order. The benefit may be the drawing of an appropriate pleading with proper particulars and the avoidance of substantial amendment after discovery, or, alternatively, the possible avoidance of unnecessary and fruitless litigation.

64 In St George Bank Ltd v Rabo Australia Ltd (‘St George’)[38] which concerned the [then] relevantly identical Federal Court Rule, O 15A r 6, Hely J observed that at its lowest level, subpara (a) requires that there be reason to believe that the applicant may have the right to obtain relief in this Court. On the facts of that case, Hely J noted at para [29] that:

[38](2004) 211 ALR 147, 155 [28] (‘St George’).

Whilst St George does not need to go so far as to establish a prima facie case, St George does have to establish that there is reasonable cause to believe that each of the necessary elements of a potential cause of action exists. The evidence must incline the mind to the view that Rabo and/or Rabo CF deliberately withheld material information from St George. The threshold test under subparagraph (a) may be set at quite a low level ... but, as I have said earlier, it is not sufficient to point to a mere possibility that St George may have a claim, and that claim is completely dependent on the as yet unknown facts.

65 In St George,[39] Hely J noted that whilst uncertainty as to only one element of a cause of action might be compatible with the ‘reasonable cause to believe’ required by subparagraph (a), uncertainty as to a number of such elements may be sufficient to undermine the reasonableness of the cause to believe. Hely J (at para [26], citing John Holland Services Pty Ltd v Terranora Group Management Pty Ltd)[40] said that ‘[i]f there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action’.[41]

[39]Ibid 154 [26(e)].

[40][2004] FCA 679 [73] (Emmett J).

[41]St George (n 38) 154 [26(d)].

66 In the recent decision of Alex Fraser Pty Ltd v Minister for Planning,[42] Riordan J observed in relation to the first prerequisite (r 32.05(a)) that it:

[42][2018] VSC 391 (‘Alex Fraser’).

(a) does not direct attention to any belief of the applicant. Rather it requires reasonable cause for a hypothetical belief;[43]

[43]Ibid [47], citing Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64, 79 [59] (French, Weinberg and Greenwood JJ) (‘Telstra v Minister for Broadband’).

(b) the authorities that draw the distinction between a reasonable cause to believe and a ‘suspicion’, ‘mere hunch’ or ‘conjecture’ are merely emphasising that a belief is not sufficient — there must be reasonable cause for the belief;[44]

[44]Alex Fraser (n 42) [46]–[49], citing, eg, Schmidt v Won (n 23) 445 (Ormiston JA with whom Charles and Batt JJA agreed).

(c) the critical element of the test is reasonableness rather than whether the circumstances would cause a belief as opposed to a suspicion or some other hypothetical state of mind;[45] and

[45]Alex Fraser (n 42) [51].

(d) a reasonable suspicion, conjecture or assertion may each fall within the ambit of a reasonable belief;[46]

[46]Ibid [52].

67 His Honour then said:[47]

[47]Ibid [53] (footnotes omitted).

The proper test is revealed by the words of the r 32.05(a). What is required is the following:

(i) there is cause for a belief in the relevant proposition — a belief being an inclination of the mind towards assenting to a proposition.

(ii) the relevant proposition is (on the second limb) that there ‘may be the right’ to relevant relief. The use of the word ‘may’ bespeaks possibility. Given the purpose of the Rule is to advance the administration of justice, r 32.05 should be interpreted as requiring a real (as opposed to a fanciful or remote possibility). However, even a real possibility may be highly improbable.

(iii) The test is qualified by a requirement that the cause for the belief in the proposition must be reasonable. It is trite to say that what is reasonable in a particular case will depend upon all of the circumstances of the case.

68 For these reasons, Riordan J concluded that the jurisdictional threshold under r 32.05 is low, which is consistent with the following:[48]

[48]Ibid [54] (footnotes omitted).

(a) The primary purpose of the rule is to advance the administration of justice by allowing a prospective plaintiff to make an informed decision on proper material about whether or not to bring a claim. The importance of this rule to the advancement of the administration of justice has been accentuated by the certification requirements on filing of civil proceedings under Part 4.1 of the Civil Procedure Act 2010. It is well established that the rule should be interpreted benevolently.

(b) It would be incongruous if the jurisdiction to order preliminary discovery could not be enlivened because of the lack of evidence, which is the very cause of the application. The purpose of the Rule is to allow an applicant, who has inadequate proof of any cause of action, to discover whether or not evidence is available that will impact (positively or negatively) on the possible proceeding.

(c) Although the jurisdictional threshold is low, its satisfaction only empowers the Court to exercise its discretion. In the exercise of its discretion, the Court can control any excesses; and assess whether there may be real benefit in making the order. It will be entitled to weigh the full range of relevant matters in determining whether an order is in the interests of justice — including the following:

(i) The level of inconvenience and cost that will be caused to the respondent.

(ii) Whether discovery may cause commercial or other damage to the respondent.

(iii) Whether the respondent will be reimbursed for its costs.

(iv) Whether an order would be inutile because the documents are privileged.

(v) The prospect of the documents sought providing the information required by the applicant.

(vi) Whether the fact that there is no real prospect of success is apparent or discovery will not serve any useful purpose. However, delving extensively in the merits of the existence of a possible cause of action will usually not be appropriate.

69 Having regard to these authorities, and others, the principles relevant to the first prerequisite may be summarised as follows:

(a) the applicant is not required to show that it has a prima facie case to a right to relief against the respondent;[49]

[49]Plzen Pty Ltd v P&O Wharf Management Pty Ltd [2007] VSC 318 [17(e)] (‘Plzen’).

(b) it is also not necessary to show precisely what cause of action the applicant may have; such a requirement would defeat the object of the rule;[50]

[50]Schmidt v Won (n 23); Beston Parks (n 36) [53]; United Energy Ltd v Energy Risk Management Pty Ltd [1998] VSC 133 [32] (‘United Energy’).

(c) rather, it merely needs to be shown that the facts are such that it may reasonably be believed that the applicant may have a right to obtain relief;[51]

[51]Schmidt v Won (n 23); Beston Parks (n 36) [53].

(d) the test for determining whether the applicant has ‘reasonable cause to believe’ is an objective test;[52]

[52]Plzen (n 49) [17(c)].

(e) the word ‘may’ indicates that the applicant’s belief does not have to amount to a firm view that there is a right to relief;[53] and

[53]Beston Parks (n 36) [53].

(f) delving extensively into the merits of the existence of a possible cause of action will usually not be appropriate.[54]

[54]Telstra v Minister for Broadband (n 43) 78 [53] (French, Weinberg and Greenwood JJ); Alex Fraser (n 42) [54(c)].

70 The second prerequisite is governed by the following principles:

(a) the onus is on the applicants to make it appear to the Court that, having made reasonable inquiries, they are unable to obtain sufficient information to decide whether or not to commence proceedings;[55]

[55]Morton v Nylex Ltd [2007] NSWSC 562 [33] (‘Morton v Nylex’).

(b) that the applicant first make all reasonable inquiries prescribes an objective assessment of whether an applicant has reasonably exhausted alternative sources of information and having done so demonstrates that they have insufficient information to enable a decision to be made to commence a proceeding. The applicant must disclose what information they already have to make a decision whether to commence a proceeding in court and identify what information is lacking;[56]

[56]Kallitsas v Emerson Finance Pty Ltd [2008] VSC 180 [26].

(c) unless the applicant is lacking something reasonably necessary to make a decision whether to institute proceedings, it is not entitled to preliminary discovery;[57]

[57]Morton v Nylex Ltd (n 55) [33].

(d) the requirement is primarily concerned with whether, as an objective fact, an applicant has sufficient information to determine whether to commence proceedings.[58] The fact that an applicant for preliminary discovery already has enough evidence to establish a prima facie case against the respondent does not mean that the applicant has sufficient information to enable it to decide whether to commence a proceeding.[59] An applicant in that position may nevertheless ‘need information to know whether the cost and risk of litigation is worthwhile’.[60] For example, an applicant with sufficient information to plead a prima facie case may prudently wish to obtain preliminary discovery about ‘what defences are available to the respondent and the possible strength of those defences, or to determine the extent of the respondent’s breach and the likely quantum of any damages award’;[61]

[58]Ibid [55].

[59]BJ Bearings Pty Ltd v Whitehead [2016] VSC 44 [19(2)] (‘BJ Bearings’).

[60]Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (2008) 169 FCR 435, 443; BJ Bearings (n 59) [19(2)].

[61]St George (n 38) 154 [26(f)] (citations omitted); BJ Bearings (n 59) [19(2)].

(e) it is for the Court to determine whether an applicant has sufficient information available to it; the applicant’s own assertion that it does not is neither determinative nor strictly necessary;[62]

[62]Beston Parks (n 36) [81].

(f) accordingly, an application cannot succeed if the applicant has sufficient information (objectively assessed) but is unable to determine whether to commence proceedings due to subjective factors, for example, an overly cautious nature;[63]

[63]Ibid [55].

(g) courts have, however, approved litigants taking a cautious, conservative or prudent approach by applying for preliminary discovery under the rule.[64] This approach is consistent with the policy underlying the rule.[65] It is also consistent with the policy underlying the Civil Procedure Act 2010 (Vic) (‘CPA’) generally, and the ‘proper basis certification’ requirements in s 42 of the CPA in particular;[66]

[64]Australian Football League v Stadium Operations Ltd [2009] VSC 264 [59]–[61] (‘AFL v SOL’); United Energy (n 50) [103].

[65]AFL v SOL (n 64) [61]; BJ Bearings (n 59) [19(3)].

[66]BJ Bearings (n 59) [19(3)].

(h) if there is evidence that an applicant has in fact decided to commence proceedings, the application must fail.[67] In determining whether an applicant has in fact already decided to commence a proceeding, irrespective of the outcome of the application, the Court should not give too much weight to posturing in correspondence prior to the making of the application, particularly correspondence alleging the existence of a strong case but nevertheless seeking preliminary discovery by letter prior to making a formal application to the Court;[68] and

[67]Beston Parks (n 36) [56].

[68]AFL v SOL (n 64) [59]–[62]; BJ Bearings (n 59) [19(4)].

(i) what constitutes ‘reasonable inquiries’ is a question of fact, to be considered in all the circumstances of the particular case.[69]

[69]Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506, 528 [86]; BJ Bearings (n 59) [19(5)].

71 For the purpose of the third prerequisite:

(a) ‘possession’ means ‘possession, custody or power’;[70]

(b) there must be a reasonable cause to believe that the respondent ‘has or is likely to have or has had or is likely to have had in that person's possession any document relating to the question whether the applicant has the right to obtain the relief’. This requires the identification of documents that relate to the question whether the applicant has the right to obtain the relief; and

(c) that inspection of the document by the applicant would assist the applicant to make the decision. This involves consideration of what the applicant lacks and what is reasonably necessary for it to make a decision regarding whether to institute proceedings. That involves consideration of what the applicant has to advance its right to relief.

72 Where each element of the rule is satisfied, the Court will ordinarily exercise its discretion in favour of the applicant.[71]

[70]Rule 32.01.

[71]AFL v SOL (n 64) [76].

1. In my view, a minor correction is required to his Honour’s summary in paragraph [69] of the judgment of what he calls ‘the first prerequisite’ (which relates to the requirements of para (a) of r 32.05).  As his Honour himself had earlier noted,[72] r 32.05 does not direct attention to any belief of the applicant. Rather, it requires reasonable cause for a hypothetical, objective belief. It follows that in sub-paragraph (d) of paragraph [69] of his Honour’s judgment the reference to determining whether the ‘the applicant’ has reasonable cause to believe is inapposite; and likewise the reference in sub-paragraph (e) to ‘the applicant’s belief’.

   [72]Victorian Taxi Families v Taxi Services Commission (n 1) [66(a)], referring to the judgment of Riordan J in Alex Fraser (n 42) [47].

1. Significantly for the present appeals, it emerges from the authorities referred to by his Honour that r 32.05 should be construed ‘benevolently’;[73] that although applications must not be based on ‘mere hunches’ or ‘flimsy foundations’, the very purpose of the rule is to permit an enquiry of a ‘fishing’ nature;[74] that the rule must be given the fullest scope its language will reasonably allow;[75] that it is not necessary to show precisely what cause of action the applicant may have;[76] that the word ‘may’ in r 32.05(a) indicates that the putative belief does not have to amount to a firm view that there is a right to relief;[77] that an applicant does not have to prove that there will be, only that there may be, a real benefit from making the order;[78] that the benefit may be the drawing of an appropriate pleading with proper particulars and the avoidance of substantial amendment after discovery, or, alternatively, the possible avoidance of unnecessary and fruitless litigation;[79] that a reasonable suspicion, conjecture or assertion may each fall within the ambit of a reasonable belief;[80] that the word ‘may’ bespeaks possibility;[81] that the purpose of the rule is to advance the administration of justice;[82] that the rule should be interpreted as requiring a real (as opposed to a fanciful or remote) possibility;[83] that even a real possibility may be highly improbable;[84] that the cause for belief in the proposition must be reasonable;[85] that what is reasonable in a particular case will depend on all the circumstances of the case;[86] that the jurisdictional threshold under r 32.05 is ‘low’;[87] that it would be incongruous if the jurisdiction to order preliminary discovery could not be enlivened because of a lack of evidence, which is the very cause of the application;[88] that the purpose of the rule is to allow the applicant, who has inadequate proof of any cause of action, to discern whether or not evidence is available that will impact (positively or negatively) on the possible proceeding;[89] that delving extensively into the merits of a possible cause of action will usually not be appropriate;[90] and that where each element of the rule is satisfied, the Court will ordinarily exercise its discretion in favour of the applicant.[91]

   [73]Schmidt v Won (n 23) 445 (Court of Appeal).

   [74]Ibid.

   [75]Beston Parks (n 36) [52]-[53] (Hollingworth J).

   [76]Ibid.

   [77]Ibid.

   [78]Ibid.

   [79]Ibid.

   [80]Alex Fraser (n 42) [53] (Riordan J).

   [81]Ibid.

   [82]Ibid.

   [83]Ibid.

   [84]Ibid.

   [85]Ibid.

   [86]Ibid.

   [87]Ibid [54].

   [88]Ibid.

   [89]Ibid.

   [90]Ibid.

   [91]AFL v SOL (n 64) [76].

1. In submissions on the appeal, the applicants seemed, from time to time, to go so far as to contend that it is not appropriate for the Court on a preliminary discovery application to consider, at all, the merits of an applicant’s foreshadowed or suggested claims for substantive relief.[92]  They seemed to contend that an application for preliminary discovery could never be defeated by reference to a matter that might constitute merely a defence or answer to such a claim at trial.[93]  In particular, the applicants seemed to contend that an application for preliminary discovery that was based on a foreshadowed claim for a declaration on a matter of public law (as in this case) could never be defeated by a submission (even a plainly correct submission) that the Court would, at the final trial, necessarily refuse such a declaration in the exercise of its discretion.[94] As the Commission submits,[95] to the extent that the applicants advanced such contentions, the authorities on which they relied[96] do not support them, and the contentions are unsound. 

   [92]See, eg, paragraphs [4]-[15] of VTF’s written submissions dated 4 July 2019 (AB 1253-1256). See also, eg, Transcript 61, 64-65, 202-204.

   [93]See previous footnote.

   [94]See above n 92.

   [95]Commission’s written submissions dated 18 July 2019 in VTF’s appeal [22]-[28]: AB 1278-1280.

   [96]Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 246 ALR 15, 28-29 [53]; O’Connor v O’Connor [2018] NSWCA 214 [76]; Beston Parks (n 36) [52]–[53] (Hollingworth J).

1. On the other hand, as indicated above, the jurisdictional threshold under r 32.05 is ‘low’, and where each element of the rule is satisfied the Court will ordinarily exercise its discretion in favour of the applicant. The Commission accepts this. Indeed, so far as the first element (r 32.05(a)) is concerned, the Commission said in written submissions filed in advance of the hearing before me that its position was:[97]

… consistent with the decision of Middleton J in Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd, where his Honour observed that if the cause of action on which an application for preliminary discovery is based could not succeed, is bound to fail, is ill-founded or is doomed to fail, then discovery should not be ordered.[98]

[97]Commission’s written submissions dated 18 July 2019 in VTF’s appeal [29].

[98]Citing Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd (2007) 164 FCR 450, 460-461 [44] (‘Dartberg’).

1. The Commission’s written submissions continued as follows (omitting the footnote):

30.Rule 32.05(a) requires there to be reasonable cause for the belief that the applicant has, or may have, the right to obtain relief against the respondent. Clearly this cannot be established if the identified claim is hopeless.

31.It follows that when evaluating an application for preliminary discovery, the Court is not prohibited from considering the merits of the claim for relief relied upon.  It is not appropriate to determine the merits of the claim as if it were the final hearing; but it is permissible to consider whether the merits of that claim are so weak as to be hopeless.

1. A footnote (fn 57) to paragraph [31] of the Commission’s written submissions read as follows:

A helpful analogy is a summary dismissal or strike out application.  Indeed, in Dartberg Middleton J observed (at [44]) that if ‘the potential cause of action would not survive an application for summary judgment…, then discovery ought not to be ordered’.

1. During the second day of the oral hearing before me, senior counsel for the Commission came to deal with Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd (‘Dartberg’).[99]  He acknowledged that Middleton J had not cited any authority for the proposition that, if the potential cause of action would not survive an application for summary judgment, then discovery ought not be ordered.[100]  I then noted that the words omitted from the footnoted quote from Dartberg referred to an application for summary judgment ‘pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth).’ I inquired as to the form that s 31A of the Federal Court of Australia Act 1976 (Cth) had taken at the time when Dartberg was decided in 2007. Senior counsel was not able to say immediately. He was not sure whether s 31A set out a test for summary dismissal that corresponded with the more modern test set out (for Victoria) in s 63 of the Civil Procedure Act 2010 (Vic), or whether, rather, it corresponded with the traditional test referred to in Dey v Victorian Railways Commissioners.[101] However, senior counsel made a particular point of saying to the Court that, regardless of what s 31A of the Federal Court of Australia Act 1976 may have provided for in 2007, the Commission did not contend that an application for preliminary discovery should be rejected if the putative claim upon which it was based would only be summarily dismissed under the more modern test set out in the Civil Procedure Act 2010 (Vic) or under some equivalent test. I do not attribute to senior counsel any concession as to the location of the burden of persuasion or proof in this respect.[102]  However, senior counsel told me that the Commission accepted that the traditional test referred to in Dey v Victorian Railways Commissioners would be applicable.[103]  Senior counsel expressly confirmed that the position of the Commission was that it would only be if the putative substantive claim was hopeless or doomed to fail that it could not be made the basis of an order for preliminary discovery.[104]

   [99]Ibid.

   [100]Transcript 271.

   [101](1948) 78 CLR 62, 91 (‘Dey’).

   [102]Indeed, in favour of the Commission, I will assume for the purposes of this case, without deciding, that the relevant burden of proof or persuasion lies on the applicant for preliminary discovery such that an applicant needs to satisfy the Court that the foreshadowed claim is not hopeless or doomed to fail.

   [103]Dey (n 101) 91.  See also General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125.

   [104]Transcript 273.

1. Some three weeks later, on the eve of the third day of hearing, the Commission filed and served a document dated 19 August 2019 headed ‘Respondent’s answers to questions asked’ signed by the Commission’s senior and junior counsel. At paragraphs 28 to 31 of that document, the Commission referred to my inquiry on the second day about the terms of s 31A of the Federal Court of Australia Act 1926 (Cth) as at the time of Dartberg. The Commission set those terms out. It transpires that in 2007 s 31A was in a form substantially similar to what is now s 63 of the Civil Procedure Act 2010 (Vic). That is, at the time of Dartberg, s 31A imposed a test of ‘no reasonable prospect of success’, and expressly provided that a claim or defence did not need to be ‘hopeless’ or ‘bound to fail’ for it to have no reasonable prospect of success. The Commission noted, ‘for completeness’, that the test for preliminary discovery in the Federal Court when Dartberg was decided was substantively identical to r 32.05.[105]

   [105]Citing Dartberg (n 98) 459.

1. Notably, however, the Commission did not expressly say in that document that it wished to resile from anything its senior counsel had said on its behalf on the second day in relation to Dartberg or in relation to the applicable test under r 32.05(a). Nor did counsel for the Commission say any such thing on the next day (the third day of hearing). Counsel did not mention the topic at all. Hence I understand that the Commission’s position remains as originally stated, that is, that any analogy with applications for summary dismissal would only be appropriate if the analogy were with the traditional ‘hopeless’ or ‘bound to fail’ test for summary dismissal. I would accept that position. However, the outcome of this case would be the same even if it were appropriate to apply an analogy with the ‘no real prospect of success’ test under s 63 of the Civil Procedure Act 2010 (Vic). Differences between the tests do exist, but the gap between them is not huge.[106]  In any event, it may not be appropriate to draw an analogy with summary dismissal applications at all.  As already indicated, there is apparently no authority for the proposition that the Court should do so other than the one line in Dartberg which was not accompanied by any reference to other authority. Usually, applications for summary judgment fall to be considered against a pleaded claim or defence. An applicant under r 32.05 is usually not obliged to produce a pleading or draft pleading in order to test the application. No pleading or draft pleading was filed in this case. The nearest thing was the set of six forms of declaration that the applicants filed after the conclusion of the oral hearings before Associate Justice Derham. His Honour had initially invited the applicants to identify nine forms of declaration – one to match each of the nine categories of documents originally sought, or fewer in the event of overlap.[107]  Importantly, however, the invitation was, expressly, to identify such forms of declarations only ‘in the rough’.[108]  There was no suggestion that anything more precise, or any statement of facts or any draft pleading, was needed or sought.

   [106]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, 40 [35]; Fernandez v EJ Industries Ltd [2020] VSCA 139 [24].

   [107]Transcript of Proceedings, Victorian Taxi Families Inc v Taxi Services Commission (Supreme Court of Victoria, S CI 2017 03730, Derham AsJ, 3 and 18 October 2017) 150 (‘Transcript below’), AB 1070.

   [108]Transcript below, 150-151, AB 1070-1071. See also on appeal at Transcript 349.

1. In any event, the remaining issues between the parties fall to be determined in accordance with the principles that have been established in Victoria in cases under r 32.05, that is to say, as I see things, on the basis of the various considerations summarised in paragraph [33] above.

The admissible evidence remains unchanged: Parliamentary privilege no longer a real issue

1. Before the Associate Judge, the evidence for the applicant stood in the form of two affidavits of Sandra Spanos, the President of VTF; one affidavit of Mircina Mayas, the sole director and secretary of Redfield; and two affidavits of Bronwyn Lincoln, a partner of Corrs Chambers Westgarth, the solicitors for the applicants. 

1. The evidence of the Commission consisted of two affidavits of Steven Brnovic.  In October 2017, when he was making his affidavits, Mr Brnovic was the Director of Legal and Regulatory Services and General Counsel to the Commission.[109]  He had held that position since July 2016.  In that capacity he had responsibility for the Commission’s prosecution functions.  He had also been a member of a State Government committee called the Rideshare Implementation Steering Committee since at least 23 August 2016.[110] 

   [109]AB 766.

   [110]AB 766-767, 848.

1. There was a large body of documentary material exhibited to the parties’ various affidavits.

1. VTF’s notice of appeal contains two references, only, to matters said to relate to admissibility of evidence.

1. Ground 1.8 asserts that his Honour found that two letters from Corrs, the applicants’ solicitors, being a letter to the Commission and a letter to a relevant Minister, were not ‘admissible evidence’ on the issue of whether VTF had a ‘special interest’ in the proposed industry reforms (or in other relevant subject matter) such as to support its contention that it would have standing to seek a relevant declaration in Court.[111]  However, his Honour made no such finding.  Nowhere did he say that the letters were inadmissible on that issue.  There is nothing to indicate that his Honour did not duly take the letters into account on the issue.

   [111]AB 3.3.

1. Ground 3.1(e) asserts that his Honour erred in finding that certain observations of the Minister in February 2017 contained in the Second Reading Speech and in the Statement of Compatibility for the relevant Bill were not admissible evidence because VTF sought to use them to establish that there was controversy between it and the Government about whether perpetual licences amounted to items of property for the purposes of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the ‘Charter’) (and more generally) and because such use was in breach of Parliamentary privilege.  At the oral hearing, counsel for the applicants hardly pressed this point.[112]  It is true that Associate Justice Derham made a ruling to the effect identified in ground 3.1(e).[113]  However, the ruling was plainly correct, for the reasons that his Honour gave.  Parliamentary privilege clearly applied.  Further, as the Commission submitted,[114] it would not have taken VTF anywhere to show that there was controversy between it and the Government as to whether perpetual licences amounted to property for the purposes of the Charter or otherwise.  That is because none of the documents of which discovery was sought could have thrown any light on that question, being a purely legal question.  Further, as already indicated, the observations in question were made by the Minister, not by the Commission.  As a result, any relevance of the observations to the applicants’ present claim is even harder to identify. 

   [112]Transcript 161-164, 226-227.

   [113]Victorian Taxi Families v Taxi Services Commission (n 1) [148(a)].

   [114]Transcript 318.

1. Counsel for the applicants confirmed at the hearing that the applicants took no issue with any of the other rulings of Associate Justice Derham about Parliamentary privilege.[115]

   [115]Transcript 226-227.

1. Otherwise, there does not appear to be any challenge by any party to any of his Honour’s evidentiary rulings.

1. On the third and last day of the oral hearing before me, counsel for the applicants sought to call on a notice to produce dated 19 August 2019.  The notice would have required the production of a ‘direction’ given by the Government to the Commission in connection with the administration of ‘transitional assistance’ and licensing fee rebates associated with the abovementioned industry reforms.  The direction had been referred to in the second of Mr Brnovic’s affidavits of October 2017 filed before Associate Justice Derham.  The applicants had not sought its production before his Honour.  It was very difficult to understand what was being claimed by way of legitimate forensic purpose for the production of the document on appeal.  Moreover, the document appeared to be one of the very documents in dispute, i.e. a document of which the applicants sought preliminary discovery in this very proceeding.  Accordingly, I ruled that the notice to produce would not be permitted to be called on.[116] 

   [116]Transcript 423-442.

1. Thus, in the end, the evidentiary material before me remains coextensive with the material that was before Associate Justice Derham and that was admitted into evidence by his Honour. 

Regulatory framework

1. As mentioned above, the Associate Judge described the regulatory framework, as in place at the relevant time, in detail;[117] and neither side takes issue with the description.  I adopt it.  However, it is important to observe certain matters on which the applicants particularly relied, and still rely.  As the Associate Judge noted,[118] the applicants emphasise that the Commission had, among other functions, the functions set out in paragraphs (b), (d) and (db) of s 115(1) of the TI Act, as follows:

   [117]Victorian Taxi Families v Taxi Services Commission (n 1) [12]-[35].

   [118]Ibid [21].

115F Functions of Taxi Services Commission

(1) The functions of the Commission are—

…

(b) to administer licensing, accreditation and other requirements imposed on participants in the commercial passenger vehicle industry;

…

(d) to promote and monitor compliance with any relevant legislation;

…

(db) to monitor, investigate and prosecute breaches of any relevant legislation;

…

1. As VTF points out,[119] Mr Brnovic conceded, in his first affidavit, that so called ride sharing (the unlicensed and/or unaccredited carriage of passengers for reward) was ‘illegal’. It appears to involve criminal offences under the combined operation of ss 139 and 158 of the T(CM) Act and under s 165 of that Act.[120]  At no stage has the Commission sought to resile from Mr Brnovic’s concession.

   [119]AB 1257.

   [120]See Victorian Taxi Families v Taxi Services Commission (n 1) [26]-[28].

1. As to licence fees, s 140(2) of the T(CM) Act, as in force at the relevant time, provided that an application for a commercial passenger vehicle licence must be accompanied by the appropriate application fee.  Under s 147A, annual licence fees were required to be paid as well.  Application fees and annual licence fees were set by or under s 147A or s 147B of the T(CM) Act.[121]

   [121]Ibid [27].

1. The Commission has always had extensive powers of investigation.[122] 

   [122]Ibid [29].

1. The Commission was obliged to develop, maintain, review, publish and, whenever performing its functions and duties under the relevant statutory provisions, have regard to a ‘taxi industry monitoring, compliance and enforcement policy’.[123]  The policy in force until 2018 was the Taxi Services Monitoring, Compliance and Enforcement Policy 2015.  It referred expressly to ‘stakeholder’ expectations about effective enforcement of safety standards.  It also included a principle of ‘consistency’, under which it was noted that industry participants needed to have full confidence that the Commission’s decision making and actions would be equitable and that comparable situations would have comparable outcomes.  The applicants submitted below, and continue to submit on appeal, that this 2015 Policy, when read together with the relevant statutory provisions, provided a benchmark against which the Commission’s conduct could be assessed.[124]

   [123]Ibid [30]-[33].

   [124]Ibid [35].

Reform of the commercial passenger vehicle industry

1. In paragraphs [36] to [59] of the judgment below, Associate Justice Derham provided a comprehensive account of the events that occurred in connection with the relevant reforms of the commercial passenger vehicle industry.  Again, I will not repeat that material, save to mention certain matters of particular significance to the issues arising on these appeals.

1. In late April 2014, the Commission commenced a targeted compliance and enforcement strategy against UberX vehicles.  This involved issuing penalty infringement notices to owners and drivers of unlicensed commercial passenger vehicles.[125]

   [125]Ibid [37].

1. In September 2014, the Commission charged twelve UberX drivers with offences against s 158(1) of the T(CM) Act. In October 2014, the Commission sent to UberX (through its corporate entity, Uber Technologies Incorporated), a ‘Cease and Desist’ letter with respect to its unlawful activity. UberX did not comply with the letter. On 4 December 2015, the Magistrates’ Court of Victoria found an UberX driver guilty of an offence against s 158 of the T(CM) Act as well as an offence of driving a commercial passenger vehicle without holding a driver accreditation.  On 18 May 2016, the findings of guilt were set aside on appeal to the County Court of Victoria.[126]

   [126]Ibid [38].

1. In late June 2016, the Victorian Government announced that it would prepare legislation that would enable the legalisation of ridesharing services.[127] 

   [127]Ibid [39].

1. On 23 August 2016, the Victorian Government announced reform to the commercial passenger vehicle industry.  This was done by media release.  The relevant text of the announcement is set out in paragraph [40] of the judgment below.  For present purposes, the most important aspects of the announcement are as follows.  It was announced that the then current licensing regime would be replaced by a single registration system for all commercial passenger vehicles, including taxis, hire cars and rideshare services; that specified amounts of money were to be provided to licence holders to help them transition to the new legislative framework; that a new per trip levy was to be introduced to fund the transition to the new system; that all existing licences were to be ‘removed’; and that these changes would open the door for more ride sharing and taxi services to hit the road and drive innovation, to provide more choice and better services for passengers.[128]

   [128]Ibid [40].

1. On the same day, the Department published more detail about the proposed ‘industry assistance package’.  The package had three elements – payments for eligible licence holders (‘transition assistance’); rebates or refunds of licence fees to annual and peak service licence holders; and a hardship fund, later known as the fairness fund, for licence holders in hardship situations.  As indicated above, transition assistance was for perpetual and fixed term licence holders who had paid their licence fees (or the bulk of them) up front, as distinct from paying by way of annual instalments.  The Government’s initial plan was to pay $100,000.00 for the first licence and $50,000.00 for the second.  Later, the Government announced that it would also pay $50,000.00 each for the third and fourth licences held by a particular licence holder.[129]

   [129]Ibid [41] and [43].

1. The Government decided to relieve new taxi-cab licence holders of their obligation to pay annual licence fees.  The statutory obligation on licence holders to pay their relevant licence fee remained but the effect of the rebate policy was that the Commission would not collect or pursue the applicable licence fee during a period of transition.  The Commission would also make payments to licence holders who had already paid the licence fee.  Application and administrative fees continued to be payable.[130]

   [130]Ibid [42].

1. The Government’s reform was to be set out in two Bills which would be introduced into Parliament to give effect to the proposed reforms.  It was not proposed that the industry assistance package would be the subject of that legislation.  Indeed, the Act that was later passed to enact the reforms as ultimately framed, the Commercial Passenger Vehicle Industry Act 2017 (Vic) (‘CPVI Act’), contains no provision creating any right to any transition assistance or to any compensation for the revocation of taxi-cab licences, or any other licences.[131]

   [131]Ibid [44].

1. The CPVI Act does, however, recognise that transitional assistance will be provided.  Amongst the ‘main purposes’ of the CPVI Act is:

(a)        to impose a levy on the carrying out of commercial passenger vehicle service transactions—

(i)     to recover the cost of transitional assistance provided to certain participants in the commercial passenger vehicle industry; and

(ii)  to partly fund the regulation of the commercial passenger vehicle industry.[132]

[132]Ibid [45].

1. Part 2 of the CPVI Act establishes a commercial passenger vehicle service levy. Section 20(3) provides for the levy to be calculated in a manner linked to the amount of money spent on transitional assistance.

1. Section 20(4) of the CPVI Act provides that for the purposes of s 20(3), the money spent on transitional assistance is the total amount paid by the State (whether as compensation or otherwise) to participants in the commercial passenger vehicle industry to assist those participants in relation to changes to the law that applies to that industry as compared with that law as in force immediately before the commencement of the Act.[133]

   [133]Ibid [47].

1. Rebates and refunds of annual licence fees were made in accordance with the August announcements.  In the first Spanos affidavit[134] there was a suggestion (albeit ambiguous) to the effect that the rebate and refund process had begun in the months ‘preceding’ the August announcement.  This was picked up in the judgment of Associate Justice Derham as the fact.[135]  However, on the appeal, it became apparent, on the whole of the evidentiary material, that, in truth, the rebate and refund policy did not come into existence until the date of the August announcement and was not put into effect until after that announcement was made.  The effect of the policy was that then holders of annual licences were no longer required to pay an annual licence fee of $23,017.00.  If a licence holder had already paid the full amount of the annual licence fee, the Commission refunded the amount paid.[136]

   [134]Affidavit of Sandra Spanos sworn 11 September 2017 (‘first Spanos affidavit’).

   [135]Victorian Taxi Families v Taxi Services Commission (n 1) [49].

   [136]Ibid. See also at [188] and affidavit of Steven Brnovic sworn 13 October 2017 [12] (‘second Brnovic affidavit’), AB 848.

1. The refund and rebate policy was inconsistent with the Gazetted annual fees for the 2016-2017 financial year.[137]  However, the arrangements for rebates and refunds were announced on the Commission’s website.  It was said that a rebate would be in place over the transition period.[138]

   [137]Victorian Taxi Families v Taxi Services Commission (n 1) [50].

   [138]Ibid.

1. The Bill for the CPVI Act was introduced into the Parliament on 22 February 2017.  The Minister announced the passing of the Bill in a media release issued on 23 June 2017.  The Bill received the royal assent on 22 August 2017.  One effect of the new law was to revoke taxi-cab licences, both assigned and unassigned, and to replace these licences with a new taxi-cab licence.  In the case of an assigned licence, the assignee would be provided with a new tax-cab licence and the owner of that licence would be left with nothing.  The law makes no provision for payment of compensation for the revocation of licence owners’ property rights.[139]

   [139]Ibid [51]. However, of course, the non-statutory ‘transition assistance package’ was in place.

1. The relevant provisions of the CPVI Act came into operation on 9 October 2017.[140] 

   [140]Second Brnovic affidavit [3].

1. In paragraphs [52]-[59] of his judgment, Associate Justice Derham made a series of references to the impact of the reform measures on the members of VTF.  For the most part, these references were based on the affidavits of the President of VTF, Ms Sandra Spanos.  Some of the matters referred to were matters of unchallenged objective fact.  Others were matters of unchallenged opinion held by Ms Spanos.  The most salient of the matters were as follows. 

1. Members of VTF had held perpetual licences for many decades.  Some had purchased them from the Government for up to $500,000.00.  Some had borrowed heavily to purchase the licences, providing the licences as security for the loan.  Often, members assigned the licences to operators who operated the vehicles and received the fare income.  Assignment agreements were in place at the time of the August 2016 announcement.  Before the announcement, they were generating income in the order of two thousand dollars per month.  After the announcement, many of the assignees stopped making monthly payments or sought to terminate the assignment agreements.  This happened to Redfield.[141]

   [141]Victorian Taxi Families v Taxi Services Commission (n 1) [52]-[53].

1. For many years, there had been a high level of active enforcement of the law by the Commission and its predecessor as against licensed participants in the industry.  From August 2016 onwards, Ms Spanos received hundreds of expressions of concern from members.  Many were directly affected and faced bankruptcy and ill health caused by stress.  Ms Spanos continued to speak daily to members who held taxi-cab licences and who struggled to maintain their businesses.  She was informed by these members that they could not compete with unlicensed ridesharing services where those services were not subject to equal regulation by the Commission and had not been required to acquire licences for their vehicles.  Vehicles used for ride sharing had advantages in terms of vehicle registration fees and not being required to be fitted with security cameras, cab charge machines, duress alarms, a trip meter, GPS tracking, EFT POS machines and decals.  They were not subject to regular inspection by the Commission for compliance with regulatory requirements.  Drivers of rideshare vehicles did not have the significant overheads of either loan repayments for the purchase of perpetual licences or the ongoing assignment fees.[142]

   [142]Ibid [54]-[55].

1. Ms Spanos maintained that the Commission’s failure or refusal to enforce its 2015 monitoring, compliance and enforcement policy and the licensing laws in respect of all participants in the industry, and in particular against those engaged in ride sharing services, had had a devastating impact on members of VTF and on all licenced participants in the industry.[143]

   [143]Ibid [56].

1. According to Ms Spanos, the position of licence holders deteriorated further after the publication of the Bill in February 2017.  Because of the proposal in the Bill to revoke all perpetual licences, they became worthless immediately.  Annual licences and other fixed term licences were also no longer valued by participants in the industry, particularly when collection of the annual fees was apparently abandoned and all fees were rebated by the Commission.  To the observation of Ms Spanos, both the introduction of unlicensed ride sharing services and the apparent failure of the Commission to enforce the prohibition on carrying passengers for reward without being licensed had adversely impacted on the value of taxi-cab licences.[144]

   [144]Ibid [57].

1. The likelihood of obtaining a relevant declaration would only be further enhanced if it turned out that the Commission knew, or was warned, that its conduct was, or might be, unlawful.  Knowledge by the Commission of any vulnerability of the perpetual licence holders may further assist the foreshadowed negligence claim, as his Honour accepted in relation to Redfield.[172] 

   [172]See Victorian Taxi Families v Taxi Services Commission (n 1) [266].

1. His Honour distinguished VTF from Redfield in this regard essentially because VTF had no prospect of suing for damages in its own right.  His Honour could not identify any utility in the making of any declaration in relation to the Commission’s past administration and implementation of the refunds and rebates policy.  In that regard, his Honour accepted[173] submissions made by the Commission to the effect that the Court would refuse to grant the administration declaration because such a declaration would have no utility, in that the applicants did not seek to have the Commission recoup or recover any of the amounts in question and because the old law had been replaced as from 9 October 2017.[174]  His Honour accepted[175] a related submission by the Commission which he had recounted as follows:[176]

In these circumstances, a declaration in the form set out in para [185] above, if made, would amount only to an acknowledgement of past invalidity of acts of the TSC, with no consequences for any acts or practices in which the TSC is currently engaged, and with no practical or legal effect for the applicants.[177] Such a declaration would have no utility, and therefore would not be granted. It has been said that it will be a rare case where a ‘bare declaration, not declaratory of any present right, and amounting only to an acknowledgment of past infringement’ will be justified.[178]

[173]Victorian Taxi Families v Taxi Services Commission (n 1) [200].

[174]Ibid [195].

[175]Ibid [201].

[176]Ibid [196] (footnotes included but renumbered).

[177]See Gardner v Dairy Industry Authority (NSW) (1978) 52 ALJR 180, 188 (Mason J), 189 (Aickin J) (‘Gardner’).

[178]Minister for Immigration and Ethnic Affairs v Ozmanian (1996) 71 FCR 1, 31-33 (Kiefel J, Sackville J agreeing) (‘Ozmanian’).

1. Summarizing this aspect in his own words, his Honour said:[179]

In those circumstances the declaration is of no possible utility beyond seeking to embarrass the TSC if it turns out that it acted beyond its statutory powers. In Ozmanian,[180] Kiefel J observed that it will be a rare case where a ‘bare declaration, not declaratory of any present right, and amounting only to an acknowledgment of past infringement’ will be justified. This is not such a rare case.

[179]Victorian Taxi Families v Taxi Services Commission (n 1) [201] (footnote included but renumbered).

[180]Ozmanian (n 178) 31–3 (Kiefel J, Sackville J agreeing).

1. Before me, the Commission relied again on the two cases referred to by his Honour in those passages, namely, Gardner v Dairy Industry Authority (NSW) (‘Gardner’)[181] and Minister for Immigration and Ethnic Affairs v Ozmanian (‘Ozmanian’).[182]  Gardner was decided by the High Court in 1977.  Ozmanian was decided by the Full Court of the Federal Court in 1996.  The Commission submits that Gardner has not since been departed from.[183]  It submits that Gardner, as read in the later case of Ainsworth v Criminal Justice Commission (‘Ainsworth’),[184] lays down a rigid rule that a declaration ‘will not’ be granted in the absence of perceived ‘foreseeable consequences’ for the parties. 

   [181]Gardner (n 177).

   [182]Ozmanian (n 178).

   [183]‘Respondent’s Answers to Questions Asked’ dated 19 August 2019 [36]-[37].

   [184]Ainsworth (n 30) 582.

1. In 2014, in XX v WW and Middle South Area Mental Health Service,[185] McDonald J said:

The second basis upon which the defendants contend that the court has no power to grant the declaratory relief sought by the plaintiff, is that there is no foreseeable consequence arising from the relief sought. This contention seeks to elevate matters which are discretionary considerations, as constituting a bar to the exercise of power. The contention is misconceived. It is uncontroversial that if there is no foreseeable consequence flowing from the grant of declaratory relief, this is a powerful consideration weighing against the grant of such relief.[186] However, the question of whether there is a foreseeable consequence is a matter properly to be taken into account in determining whether to exercise the power to grant a declaration. It is not, of itself, a bar to the existence of the power to grant declaratory relief.

The Commission submits that this passage cannot stand with Gardner or with Ainsworth, in which Gardner is cited, particularly the observation in Ainsworth that relief ‘will not’ be granted if, among other things, ‘the Court’s declaration will produce no foreseeable consequences for the parties’.[187]

[185][2014] VSC 564 [47].

[186]Ainsworth (n 30) 582.

[187]Ibid, citing Gardner (n 177) 188 (Mason J) and at 189 (Aickin J).

1. It is true that strong language is used in this regard in Gardner and in Ainsworth, but nowhere in those judgments is it expressly laid down that the principle allows for no exceptions at all.  Thus in Ozmanian, on which the Commission otherwise relies, Kiefel J allowed for the ‘rare case’ where a bare declaration, not declaratory of any present right, and amounting only to an acknowledgement of past infringement, will be justified.

1. Moreover, there is a well-established line of authority to which, unfortunately, Associate Justice Derham was not referred, to the effect that a declaration may be granted even where the issue has no practical significance for the moving party, if there is a wider public interest in the making of the declaration.

1. Thus in 1993, in Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (‘Tobacco Institute’),[188] a decision of the Full Court of the Federal Court, Sheppard J ‘considered it appropriate to make declarations that the appellant had engaged in misleading and deceptive conduct as it gave formal effect to the court’s conclusion and the litigation involved the public interest’.[189]  That summary of the approach of Sheppard J in Tobacco Institute was given in 2005 by Kiefel J (as the Chief Justice of Australia then was).  Of course, Kiefel J had been the author of the passage in Ozmanian mentioned above.  In ACCC v Eurong Beach Resort Ltd (‘Eurong’)[190] her Honour distinguished Ozmanian, saying:

It was my view that the declaration [made at first instance in Ozmanian] was not appropriate, in particular because it was productive of no effect.  It did not belong to the special category of cases where declarations were appropriate to be made… In Ozmanian there was no suggestion that there was any wider public interest in the making of the declaration.

In Eurong the ACCC, a regulatory authority, was seeking a declaration that the respondents had breached the Trade Practices Act 1974 (Cth) in relation to predatory pricing and arrangements with respect to charges for barge services. Kiefel J held that the case would be a suitable one for the making of a declaration if the ACCC’s allegations were sustained, despite the respondents’ point that what were sought was bare declarations with respect to past conduct involving no statement of legal rights and no resolution of a controversy, in circumstances where the respondents had ceased their business, no injunction was sought and it was too late to impose pecuniary penalties. Her Honour held that the litigation fell into the class of cases involving the public interest and that it followed that the declarations would not lack utility.

[188](1993) 41 FCR 89.

[189]Eurong (n 16) (Kiefel J).

[190]Ibid [4]-[5].

1. Subsequent Victorian cases in the same line include Director of Consumer Affairs Victoria v DW International Trading Pty Ltd,[191] in which Eurong and numerous intervening cases are mentioned.[192]  As John Dixon J said in that case,[193] the courts ‘have consistently rejected arguments about the lack of utility of declaratory relief in cases involving the public interest’.  In Director of Consumer Affairs Victorian v Mecon Insurance Pty Ltd[194] Elliot J made the same point.  Referring to further like cases, his Honour said:[195]

In summary, the declaratory relief sought can have no function in relation to current or future conduct of the parties, other insurers or the public in general. However, the utility in making the declarations is to state publicly that the Act was contravened by the defendants in the manner alleged by the Director. From this it follows that the grant of declaratory relief “give[s] formal effect to the court’s conclusions” and vindicates the Director’s claim that the Act has been contravened. Further, the grant of declaratory relief in the form sought indicates that the court disapproves of or condemns that contravention. These circumstances, considered with the overall facts of the case, provide a proper basis for the relief sought.

[191][2010] VSC 515 (John Dixon J).

[192]Ibid [43]-[44].

[193]Ibid [43].

[194][2016] VSC 42 (Elliott J).

[195]Ibid [28] (footnotes omitted). See also Borrowdale v Director-General of Health [2020] NZHC 2090 [290] (Thomas, Venning and Ellis JJ); Loielo v Giles [2020] VSC 722 [264]-[265] (Ginnane J).

1. Similar sentiments were expressed in the Federal Court in 2012 by Logan J in Tax Practitioners Board v Hogan[196] and in May 2020 by Murphy J in CMA19 v Minister for Home Affairs.[197]  In the latter case, the declaration was made against the Minister for Home Affairs in a public law matter relation to migration.  An example even closer to the alleged facts of the present case is provided by the decision of the Privy Council in 2013 in Antigua Power Co Ltd v Attorney General of Antigua and Bermuda,[198] a case referred to (by footnote) in the (emphasised) last sentence of the following pertinent passage from Meagher, Gummow and Lehane’s Equity Doctrines and Remedies:[199]

Will a declaration as to wholly past events be inutile? In Minister for Immigration & Ethnic Affairs v Ozmanian, Jenkinson J said that, because the object of the grant of a declaration is the determination of matters in controversy between the parties, a bare declaration not declaratory of any present right and amounting only to an acknowledgement of past infringement of a right to procedural fairness, will rarely be justified. Indeed, a claim for a declaration that declares no present right has a heightened chance that the court will have no jurisdiction to grant declaratory relief. But the fact that the declaration would concern no present rights is not necessarily decisive. That the matter is one of substantial public importance may persuade a court to lean towards granting a declaration even though the relevant events all lie in the past. For example, a prime minister might in the past have issued instructions to the police in a manner at odds with the institutional independence of the police.

[196][2012] FCA 642 [23].

[197][2020] FCA 736 [211].

[198][2013] UKPC 23 [57]-[60].

[199]Heydon, Leeming and Turner, Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (LexisNexis, 5^th ed, 2014) 640-641 [19-300] (footnotes omitted) (emphasis added).

1. Returning to the facts of the present case, to the extent that rarity may be relevant, it is surely rare for an executive government or a statutory authority to adopt a blanket policy of making refunds and granting rebates in respect of statutory exactions that have been duly paid, or are due and payable, across an entire regulated industry.  This situation apparently persisted in this State for more than 12 months.

1. In the absence (at present) of any answer from the Commission, the refunds and rebates policy seems to have involved ‘the pretended power of dispensing with laws, or the execution of laws’ by executive authority.[200]  In A v Hayden,[201] Brennan J observed that regal or executive power to dispense with any statute was abolished by the Bill of Rights; and that ‘whatever vestige of the dispensing power that then remained, it is no more’.[202]  Brennan J continued:[203]

The principle, as expressed in the Act of Settlement, is that all officers and ministers ought to serve the Crown according to the laws. It is expressed more appropriately for the present case by Griffith CJ in Clough v Leahy:[204]

“If an act is unlawful – forbidden by law – a person who does it can claim no protection by saying that he acted under the authority of the Crown.”

This is no obsolete rule; the principle is fundamental to our law, though it seems sometimes to be forgotten when executive governments or their agencies are fettered or frustrated by laws which affect the fulfilment of their policies. Then it seems desirable to the courts “that sometimes people be reminded of this and of the fate of James II, as Scrutton L.J. reminded the London County Council” in R. v. London County Council; Ex parte Entertainments Protection Association;[205] per Windeyer J. in Cam and Sons Pty Ltd v Ramsay.[206]

[200]A v Hayden (n 17) 580 (Brennan J).

[201]Ibid.

[202]Ibid.

[203]Ibid 580-581 (footnotes included but renumbered).

[204](1904) 2 CLR 139, 155-156.

[205][1931] 2 KB 215, 229.

[206](1960) 104 CLR 247, 272.

1. In Australia, happily, it is not often that governments need to be reminded by courts of the fundamental legal principles to which Brennan J referred in A v Hayden, although the present case may turn out to be such a case.  As far as I am aware, the last such reminder issued by a Victorian court was issued in 1989 in Churchill Fisheries Export Pty Ltd v Director-General of Conservation.[207]

   [207][1990] VR 968 esp 983-988 (Beach J) (‘Churchill Fisheries’).

1. In my view, having regard to the line of cases relating to declarations in the public interest, and to the prospect that this case, insofar as it relates to the rebate and refund policy, may be one of those rare cases in which the executive and/or a statutory authority has pretended to dispense with the laws of the land, the applicants’ claim for preliminary discovery of documents should not be defeated by the Commission’s contention that any declaration would lack utility or foreseeable consequences for the parties.

1. Even if that view be wrong, I note that, so far as utility is concerned, the applicants also rely on a contention that the fifth declaration could help to advance the putative negligence claims of Redfield and of the other perpetual licence holders that belong to the VTF.  I accept that that is not an unreasonable contention.  It corresponds with the contention accepted by the Associate Judge in relation to the sixth declaration (see below).

1. Further, the applicants refer to the alleged prospect that a strong, appropriate declaration may assist them in negotiations  with the Government for enhanced ex gratia compensation.  In response, the Commission points out that, in Gardner, the High Court was dismissive of a suggestion by the appellants that a declaration should be granted because the Executive might respond ‘by making some compensation available to the appellants’[208] or by ‘in some undefined way [initiating] administrative or legislative action which would improve the lot of the appellants and persons in the appellants position’.[209]  However, it is arguable that Gardner is distinguishable on the basis that, in the present case, there is nothing ‘undefined’ about the arrangements already in place for transitional assistance to perpetual licence holders.  The claimants would merely be asking for enhanced amounts said to be closer to what they have lost.  Further, there is a far greater prevalence of sophisticated government schemes for extrajudicial compensation now than there was in 1977 when Gardner was decided.[210]

   [208]Gardner (n 177) 181 (Barwick CJ). Barwick CJ went on to say (loc. cit.) that ‘that is clearly, in my opinion, no basis for the making of a declaratory order of direction’.

   [209]Ibid 188 (Mason J).

   [210]See Sarah Ng, Nathalie Ng and Greg Weeks, ‘Government schemes for extrajudicial compensation: an assessment’ (2020) AIAL Forum 29.

1. There seems to be every likelihood that at least some of the documents referred to in paragraphs 1, 3, 4, 5 and 6 of the annexure to his Honour’s order would throw light on the viability of a claim for the fifth declaration, and would thereby assist the applicants to make a decision about whether to commence an appropriate proceeding.[211] 

   [211]Cf Victorian Taxi Families v Taxi Services Commission (n 1) [202].

1. I see no other good reason to deny VTF or Redfield preliminary discovery of the documents referred to in paragraphs 1, 3, 4, 5 and 6 of the annexure to the order.

1. That leaves only the documents referred to in paragraph 2 of the Associate Judge’s order.

1. Those documents relate to what the Commission did or did not do (or plan to do) in relation to illegal ride sharing services in the period up to the commencement of the legislation in October 2017.

1. This in turn leads to the question whether the applicants’ suggestion that they may be able to obtain the sixth declaration (the ‘vitiating factors declaration’) warrants preliminary discovery of the documents referred to in paragraph 2 of the annexure to the order, and of other documents referred to in other paragraphs of that annexure.  The sixth declaration is excessively wordy.  However, in its relevant essence, it is to the effect that the Commission at first did not make any proper or sufficient attempt to stamp out illegal ridesharing services and later adopted a policy of facilitating, rather than seeking to prevent, illegal ride sharing services pending passage of the proposed new legislation.  That formulation may be compared with the reformulation by Associate Justice Derham of the sixth declaration.[212]  The Commission submits that there is no evidence to support this proposed claim and that, in any event, courts generally do not interfere with decisions to prosecute or not prosecute.

   [212]Ibid [221].

1. Associate Justice Derham was not persuaded that Redfield should be denied the documents in question for lack of evidence to support its foreshadowed claim for the sixth declaration.[213]  His Honour observed that the requisite evidence may emerge from the very documents to be discovered.  I agree.

   [213]Ibid [222].

1. In any event, in my view there is ample evidence to suggest that the applicants (both of them) may have the right to a suitable declaration relating to the Commission’s attitude to ridesharing.  The evidence is clear that UberX not only survived but flourished over the relevant period.  It greatly expanded its illegal services from the time of its arrival in Victoria in 2014, to the great detriment of perpetual licence holders. By June 2016 the Government had already announced an intention to legalise ridesharing.  By August 2016, at the latest, Mr Brnovic was sitting on a Government committee with a title that suggested that it had the function of implementing ridesharing.  Indeed, for the period after May 2016, the evidence is all one way.  UberX, and probably others, were openly carrying out their illegal operations, and nothing at all was being done to stop it.

1. It is true that the courts will generally not interfere with individual decisions about prosecutions.  But the allegation here is quite different.  It raises the suggestion of a general or blanket policy of declining to investigate or prosecute, and of declining to use any of the Commission’s other powers to inhibit ridesharing services, despite their admitted illegality under the very statutes that the Commission was responsible to administer.  This raises, again, the spectre of a purported suspension of the laws on the part of the Executive.[214]

   [214]See, again A v Hayden (n 17) 580 (Brennan J); Churchill Fisheries (n 207) 983-988.

1. In Martin v Nalder,[215] several taxi drivers in Perth who owned taxi plates approached the Supreme Court of Western Australia seeking a writ of mandamus and two declarations against the relevant Minister and the CEO of the Western Australian Department of Transport alleging that the respondents had adopted a policy not to prosecute the companies involved in the provision of UberX services in Perth.  Tottle J dismissed the case.  The judge held that the respondents had a discretion to prosecute but were not under a duty to prosecute. Hence mandamus to prosecute was not available.  On the other hand, the judge allowed the possibility that the authorities may have had a duty to consider the commencement of prosecutions.  The judge accepted that cases such as R v Commissioner of Police of the Metropolis, Ex parte Blackburn[216] and King-Brooks v Roberts[217] arguably supported the applicants’ contention that the respondents’ duty to enforce the law encompassed a duty to consider the commencement of prosecutions.  That was so despite certain statements of McHugh J in Re McBain; Ex parte Australian Catholic Bishops Conference[218] to the effect that, at least in some circumstances, the executive is free not to enforce the law.  However, Tottle J did not need to decide this point because he concluded that the respondents had not adopted a ‘no prosecution’ policy. 

   [215][2016] WASC 138.

   [216][1968] 2 QB 118.

   [217](1991) 5 WAR 500.

   [218](2002) 209 CLR 372, 425-426. See also the more detailed observations of McHugh J on this topic in Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 [80]-[86].

1. Martin v Nalder supports the present applicants insofar as it treats as arguable the proposition that the Court might intervene in the event of a ‘no prosecution’ policy.  In any event, it would surely have been unlawful for the Commission to make any promise or arrangement with UberX or like providers that it would not prosecute them.[219]  Further, the tools available to the Commission were not limited to prosecutions.  Arguably it could have sought injunctive relief against a relevant UberX company.  In any event, putting aside any conflicting obligation to follow Government directions, it could certainly have avoided actual co-operation with UberX. 

   [219]R v London County Council; ex parte The Entertainments Protection Society [1931] 2 KB 215, 229; A v Hayden (n 17) 580 (Brennan J); Churchill Fisheries (n 207) 983-988.

1. In these circumstances, any suggestion that the sixth declaration would lack utility would be met by the same response as is referred to above in relation to the fifth declaration.

1. Again, there is no doubt that the description of the documents in paragraph 2 of the annexure to the order suggests that those documents would be of relevance for present purposes.  Other categories of documents would seem to be relevant too, especially those referred to in paragraphs 3, 4(c) and (d), 5(c) and (d) and 6 of the annexure to the order.

1. I am satisfied that the applicants do not yet have sufficient material to decide whether to commence a proceeding for either the fifth declaration or the sixth declaration.

The standing of VTF

1. The Associate Justice was not satisfied that VTF would have sufficient standing to seek any of the declarations in question.

1. However, his Honour was not referred to a certain line of authority that would assist VTF considerably in this regard.

1. As mentioned above, there is no real dispute that Redfield and other former holders of perpetual licences would have the requisite standing.  This is because their commercial interests were and are at stake.  These days, the courts frequently treat commercial interests falling short of property rights as sufficient for standing in relation to applications for judicial review of administrative decisions that affect the same.[220]

   [220]See, eg, Argos Pty Ltd v Minister for the Environment and Sustainable Development (2014) 254 CLR 394. See, further, Aronson, Groves and Weeks (n 28) [11.180].

1. There are some old authorities which support the proposition that a representative association of commercial entities does not acquire the standing of its members.[221]  However, more recent cases give considerably greater significance to the interests of the members of a representative body.  Several such cases are discussed by Ward CJ in Eq in The Pharmacy Guild of Australia v Ramsay Health Care Ltd,[222] notably Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA)[223] (union) and North Australian Aboriginal Legal Aid Service v Bradley (legal service).[224] 

   [221]See, eg British Medical Association v Commonwealth (1949) 79 CLR 201, 257 (‘British Medical Association’).

   [222][2019] NSWSC 1045 [102]–[107], cf [169].

   [223](1995) 183 CLR 552.

   [224](2001) 192 ALR 625 (Weinberg J). See, further, Aronson, Groves and Weeks (n 28) [11.150]-[11.170].

1. VTF has other bases to claim standing in its own right.  These were discussed in detail by Associate Justice Derham in his Honour’s judgment.[225]  Unlike his Honour, I may well have been persuaded by those considerations, alone, to accept that VTF might have the requisite standing in a putative claim for a declaration.  In any event, when those considerations are combined with the strongly arguable proposition, drawn from the cases just mentioned, that VTF may be able to rely upon its members’ interests, it becomes reasonable to believe that VTF may be granted the requisite standing.  It has been said recently by the Court of Appeal that standing is a threshold requirement.[226] However that may be, an applicant for preliminary discovery is not obliged to establish on the balance of probabilities that it would be accorded standing in the suggested future claim.  If, viewing the matter as a whole, there is reasonable cause to believe that an applicant might be able to satisfy each element of the relevant putative claim, including any standing element, that is sufficient.  In my opinion, that is this case.

   [225]Victorian Taxi Families v Taxi Services Commission (n 1) [114]-[135].

   [226]Maguire v Parks Victoria [2020] VSCA 172 [76]; but compare Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493, 504-505 (Aickin J); Pape v Commissioner of Taxation (2009) 238 CLR 1, 35 [50]-[51].

1. Further, as mentioned above, it seems idle to agonise over the standing of VTF when Redfield’s standing is so clear.[227] 

   [227]British Medical Association v Commonwealth (n 221) 257; Gibraltar (n 19) 59-60.

Negligence

1. As explained above, my decision that both applicants are entitled to preliminary discovery of the relevant documents on public law grounds means that the Commission’s appeal becomes pointless.  It must be dismissed accordingly.

1. However, for completeness, I note (again) that I see no error in the reasons or conclusions of Associate Justice Derham in relation to negligence.

1. It may be that the duty of care that would be asserted by a relevant perpetual licence holder in a negligence action would be a novel one.  Recently, the principles for deciding whether to recognise a novel duty of care were helpfully analysed by Wigney J in Farah Custodians Pty Limited v Commissioner of Taxation (No 2),[228] a case cited by counsel for the applicants.  The applicant blamed the Commissioner for directing to the applicant’s tax agent refunds that were due to the taxpayer.  The refunds were lost through fraud of the agent.  The case was comparable to the present case in that the loss alleged was pure economic loss.  The applicant taxpayer successfully resisted an application by the Commissioner for summary dismissal. 

   [228][2019] FCA 1076 [41]-[49].

1. Wigney J noted[229] observations in other cases as follows (citations omitted).  The ultimate question as to the existence of a duty of care is one of law, but it involves a multi-faceted inquiry.  The inquiry is ‘fact rich and fact intensive’.  For that reason, it has been said that it is ‘often, though not always, inappropriate to dismiss summarily a claim [alleging a novel duty of care] on the pleadings, at least as they stand at an early stage of litigation’, although the fact that  a novel duty of care has been alleged does not ‘immunise’ a pleading from summary dismissal.

   [229]Ibid [48].

1. As already mentioned, in the present case the applicants have not yet been called upon to construct a pleading.  They seek the documents in question to assist them to decide whether a viable pleading can be drawn.

1. As to breach, there can be little doubt that, if the Commission had a common law duty to protect the interests of perpetual licence holders, the Commission’s alleged conduct, as described above, might have amounted to a breach of that duty. 

1. As to causation, once it was clarified that the perpetual licence holders’ losses were alleged to have been suffered not only before 23 August 2016 but also for some time after 23 August 2016, it also became clear that the element of causation was sufficiently arguable.

The ‘cross-appeal’: the original categories 1 and 2

1. As indicated above, I consider that Associate Justice Derham was correct to exclude the original categories 1 and 2.  They relate to transition assistance only.  Apart from saying that the Commission may have undervalued the perpetual licences, the applicants did not satisfactorily identify any claim relating to transition assistance that might be viable in Court. Hence Redfield’s de facto cross-appeal (if that is what it is) should be dismissed.

Conclusion and orders

1. For these reasons, the Commission’s appeal against the order of 5 April 2019 will be dismissed.  Any cross-appeal by Redfield will also be dismissed. VTF’s appeal against the order will be allowed to the extent indicated above.  Paragraph 2 of the order, by which VTF’s application for preliminary discovery was dismissed, will be set aside. The reference in ‘other matters’, and in paragraph 3 of the order, to undertakings given by Redfield not to disclose documents to VTF will be removed, and the undertaking will be treated as lapsed or discharged.  It will be ordered that the Commission make discovery to both applicants, by a date to be specified, of all documents falling within the existing categories described in the annexure to the order of 5 April 2019. 

1. I direct the parties to confer and to furnish the Court with an agreed order or set of orders to dispose of these matters.  If costs cannot be agreed, the parties should propose directions for the question of costs to be heard and determined.

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