Victorian Taxi Families Inc v Taxi Services Commission

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2017 03730

VICTORIAN TAXI FAMILIES INC	First Applicant
REDFIELD COURT HOLDINGS PTY LTD (ACN 092 473 080)	Second Applicant
v
TAXI SERVICES COMMISSION (ABN 90 176 780 477)	Respondent

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	3 & 18 October 2017, written submission to 15 November 2018 and Victorian Equal Opportunity and Human Rights Commission notice of non-intervention on 8 January 2018.
DATE OF JUDGMENT:	12 October 2018
CASE MAY BE CITED AS:	Victorian Taxi Families Inc & Anor v Taxi Services Commission
MEDIUM NEUTRAL CITATION:	[2018] VSC 594 (Revised 31 May 2019)

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PRACTICE AND PROCEDURE – Preliminary discovery – Whether reasonable grounds to believe that applicants may have right to obtain relief against respondent– Whether sufficient information to enable applicants to decide whether to commence proceeding – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 32.05.

EVIDENCE – Parliamentary privilege – Statements made to Parliamentary Committees and reports of such Committees – Whether statements and reports may be tendered in evidence – Whether statements can be used to prove the truth of the facts contained in the statements – Bill of Rights 1689 (UK) art 9; Constitution Act 1975 (Vic) s 19; Parliamentary Privileges Act 1987 (Cth) s 16(3); Evidence Act 2008 (Vic) s 10.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr H Carmichael	Corrs Chambers Westgarth
For the Respondent	Mr W Alstergren QC and Mr J Pizer QC each with Mr M Hosking	Legal and Regulatory Services, Taxi Services Commission

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Parties................................................................................................................................................... 1

Summary of conclusions.................................................................................................................. 2

Affidavits............................................................................................................................................. 3

Procedural matters............................................................................................................................. 3

Regulatory framework...................................................................................................................... 4

Reform of the commercial passenger vehicle industry............................................................ 11

Preliminary discovery — applicable principles......................................................................... 20

Parliamentary privilege — applicable law.................................................................................. 28

Evidence challenged........................................................................................................................ 41

Exhibit SB:04................................................................................................................................ 41
Exhibit BLL:8................................................................................................................................ 41
Exhibits BLL:9 and BLL:10......................................................................................................... 42
Exhibit BLL:11.............................................................................................................................. 42
Exhibits BLL:13, BLL:14 and BLL:15........................................................................................ 43
Exhibit BLL:22.............................................................................................................................. 43

Documents sought........................................................................................................................... 43

Right to obtain relief....................................................................................................................... 45

Standing............................................................................................................................................. 47

Consideration..................................................................................................................... 54

Property right declaration.............................................................................................................. 54

Applicants’ submissions............................................................................................................ 54
TSC’s submissions....................................................................................................................... 56
Consideration.............................................................................................................................. 58

Charter duties declaration.............................................................................................................. 60

Applicants’ submissions............................................................................................................ 60
TSC’s submissions....................................................................................................................... 62
Consideration.............................................................................................................................. 63

Proper consideration declaration.................................................................................................. 65

Applicants’ submission.............................................................................................................. 65
TSC’s submissions....................................................................................................................... 65
Consideration.............................................................................................................................. 66

Grant declaration............................................................................................................................. 66

Applicants’ submissions............................................................................................................ 66
TSC’s submissions....................................................................................................................... 68
Consideration.............................................................................................................................. 70

Administration declaration............................................................................................................ 71

Applicants’ submissions............................................................................................................ 71
TSC’s submissions....................................................................................................................... 73
Consideration.............................................................................................................................. 75

Vitiating factors declaration.......................................................................................................... 76

Applicants’ submissions............................................................................................................ 76
TSC’s submissions....................................................................................................................... 78
Consideration.............................................................................................................................. 79

Negligence and breach of statutory duty.................................................................................... 81

Applicants’ submissions............................................................................................................ 81
TSC’s submissions....................................................................................................................... 88
Consideration.............................................................................................................................. 94
Statutory duty.............................................................................................................................. 95
Common law duty of care......................................................................................................... 97
Reasonable foreseeability of injury................................................................................. 97
Power to protect specific class......................................................................................... 98
Vulnerability of interests.................................................................................................. 98
Knowledge of risk of harm............................................................................................... 98
Interference with policy of legislative functions........................................................... 99
Other supervening reasons............................................................................................ 100

Other matters............................................................................................................................. 100

Enquiries made............................................................................................................................... 101

Reasonable cause to believe respondent has documents that would assist applicant..... 105

Categories of documents to be discovered................................................................................ 105

Conclusion....................................................................................................................................... 106

HIS HONOUR:

Introduction

This is an application for preliminary discovery pursuant to r 32.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules). The applicants assert that they may have a right to various relief (including declarations and damages) against the respondent (TSC) in relation to its action and inaction in exercising its statutory functions regulating the commercial passenger vehicle industry. However, the applicants claim that they require additional information to assist them to decide whether to institute proceedings pursuing that relief.

In general, the documents sought go to the question of whether and to what extent the TSC lawfully performed or complied with its statutory duties as 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) (TCM Act).

Parties

The first applicant, Victorian Taxi Families Inc (VTF), is a body corporate, incorporated and registered pursuant to the Associations Incorporation Reform Act 2012 (Vic) (Associations Reform Act).[1]
[1]Associations Incorporation Reform Act 2012 (Vic) s 29. Pursuant to s 29(2)(c) of the Associations Reform Act, Taxi Families may sue and be sued in its corporate name and may, pursuant to s 30(d) of that Act, ‘do anything that is incidental or conducive to the attainment of the purposes and the exercise of the powers of the association’.

The membership of the VTF numbers approximately 700 individuals and entities who have owned taxi-cabs and taxi-cab licences or who have an interest or shareholding in a corporate entity which has owned, at material times, a taxi-cab or taxi-cab licence.[2]
[2]Victorian Taxi Families Inc and Redfield Court Holdings Pty Ltd, ‘Applicants’ Outline of Submissions’, Submission in Victorian Taxi Families v Taxi Services Commission, S CI 2017 03730, 2 October 2017, [28] (Applicants’ Outline).

The VTF asserts that since 2012 it, and a forerunner unincorporated association, has been, and continues to be, well recognised in Government circles as representing and advocating the commercial, regulatory and economic interests of small business taxi-cab owners and licence holders. The VTF assumed this role initially in response to the Fels Report,[3] and in the years since has consulted and liaised with Government and the opposition of the day, and other commercial passenger vehicle industry participants in response to legislative reform proposals and laws.[4]
[3]The Fels Taxi Industry Inquiry was announced by the Premier of Victoria Mr Baillieu on 28 March 2011. To support the Inquiry, the Government introduced the Transport Legislation Amendment (Taxi Services Reform and Other Matters) Bill 2011 (Vic) in June 2011. The resultant Act established the TSC as a body corporate under the Transport Integration Act 2010 (Vic) (TI Act). The Report was not in evidence before the Court.
[4]Affidavit of Sandra Spanos, sworn 11 September 2017, [4]–[20] (first Spanos affidavit).

The second applicant, Redfield Court Holdings Pty Ltd (Redfield), was at the time of the application, the registered owner of two taxi-cab perpetual licences.[5] One was purchased in 1996 for $295,000.00 and the other in 2006 for $450,000.00. The applicants contend that this constitutes a material economic interest in the TSC’s due administration of commercial passenger vehicle laws.[6] Redfield has a direct economic interest in the transition assistance scheme administered by the TSC.
[5]Affidavit of Mircina Mayas, sworn 12 September 2017, [4] (Mayas affidavit).
[6]Applicants’ Outline [36].

The TSC is the regulator of the commercial passenger vehicle industry in Victoria. The TSC is a body corporate established by s 115B(1) of the TI Act and is the licensing authority for the purposes of the TCM Act. The TSC is not immune from suit and by s 115B of the TI Act may sue and be sued.[7]
[7]TI Act s 115B(2)(a).

Summary of conclusions

For the reasons set out below, Redfield, and not the VTF, may have a right to relief from the TSC arising from the possible breach of a common law duty of care (and a related declaration) in relation to the monitoring and enforcement of the licensing requirements of the law in relation to:

(a) ride-share operators and participants; and

(b) the failure to collect licence fees and the rebate of licence fees already paid,

giving rise to damage. Some categories of documents sought may be relevant to this right to relief and those documents are generally described in categories 3, 4, 5, 6, 7 and 9 in Annexure A to these reasons. It will be necessary for the parties to make further submissions as to the description of the documents to be discovered.

Affidavits

The application is supported by the affidavits of Sandra Spanos, the President of the VTF,[8] Mircina Mayas, the sole director and secretary of Redfield[9] and Bronwyn Lisa Lincoln, a partner of Corrs Chambers Westgarth (Corrs), the solicitors for the applicants.[10]
[8]First Spanos affidavit; Affidavit of Sandra Spanos, sworn 3 October 2017 (second Spanos affidavit).
[9]Mayas affidavit.
[10]Affidavit of Bronwyn Lisa Lincoln, sworn 7 September 2017 (first Lincoln affidavit); Affidavit of Bronwyn Lisa Lincoln, sworn 1 November 2017 (second Lincoln affidavit).

In response to the application, the TSC has filed the affidavits of Steven Brnovic.[11]
[11]Affidavit of Steven Brnovic, sworn 2 October 2017 (first Brnovic affidavit); Affidavit of Steven Brnovic, sworn 13 October 2017 (second Brnovic affidavit).

Procedural matters

The application was heard over two days, some weeks apart. At the commencement of the second day the TSC raised the question of whether notice should have been given to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission (Commission) pursuant to s 35 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter Act). The applicants’ lawyers had turned their minds to the question and had decided that notice was not required in this case. The TSC was of the same view. The matter then proceeded on the basis that the parties would deal with all the arguments and that if I determined that s 35(1)(a) of the Charter Act was engaged, then notice would be given. Notwithstanding this, the applicants gave notice under s 35 of the Charter Act on 1 November 2017. The Victorian Government Solicitors Office responded on behalf of the Attorney-General on 8 December 2017 that he would not intervene. The Commission responded on 8 January 2018 that it would not be intervening in the proceeding.

Regulatory framework

The TSC was established in July 2013 by the Transport Legislation Amendment (Taxi Services Reform and Other Matters) Act 2011 (Vic).That Act amended the TI Act and the TCM Act . The TSC’s functions, duties and powers are contained in both of those Acts. The TI Act had replaced the Transport Act1983 (Vic) as Victoria’s principal transport statute and requires that all decisions affecting the transport system be made with regard to the vision, transport system objectives and decision-making principles established by the TI Act.[12] Consequently, the application of the TCM Act is subject to the overarching transport system vision, transport system objectives and decision-making principles in the TI Act.
[12]Victoria, Parliamentary Debates, Legislative Assembly, 10 December 2009, 4568–74 (Lynne Kosky).

The ‘vision statement’ is set out in s 6 of the TI Act and states:

The Parliament recognises the aspirations of Victorians for an integrated and sustainable transport system that contributes to an inclusive, prosperous and environmentally responsible State.[13]

[13]TI Act s 6.

Sections 24(1) and (2) of the TI Act mandate that the TSC, as a ‘transport body’, must have regard to the ‘transport system objectives’ (set out in pt 2 div 2 of the TI Act) and the ‘decision making principles’ (set out in pt 2 div 3 of the TI Act). The transport system objectives deal with subjects concerning ‘social and economic inclusion’ (s 8), ‘economic prosperity’ (s 9), ‘environmental sustainability’ (s 10), ‘integration of transport and land use’ (s 11), ‘efficiency, coordination and reliability’ (s 12) and ‘safety and health and wellbeing’ (s 13). The decision-making principles deal with such things as the principles of ‘integrated decision making’ (s 15), ‘triple bottom-line assessment’ (s 16), ‘equity’ (s 17), ‘transport system user perspective’ (s 18), and the principles of ‘stakeholder engagement and community participation’ (s 20) and ‘transparency’ (s 21).

The principle of stakeholder engagement and community participation means taking into account the interests of stakeholders, including transport system users and members of the local community and adopting appropriate processes for stakeholder engagement.

The principle of transparency means members of the public should have access to reliable and relevant information in appropriate forms to facilitate a good understanding of transport issues and the process by which decisions in relation to the transport system are made.

The TI Act and the TCM Act were, and as at the date of the hearing remained, the primary legislation governing the TSC’s powers, duties and functions and commercial passenger vehicle law. The two Acts relevantly governed the TSC and the participants in the commercial passenger vehicle industry.

The primary object of the TSC is to regulate the commercial passenger vehicle industry. This is expressed in s 115E of the TI Act, which defines the objects of the TSC:

(1) The primary object of the TSC is to regulate the commercial passenger vehicle industry in a manner that—
(a)promotes the provision of commercial passenger vehicle services that are customer responsive, safe, competitive, efficient and accessible; and

(b)is consistent with the vision statement and the transport system objectives.

(2) Without limiting the generality of subsection (1), the primary object includes the following—
(a) to pursue and promote major and enduring improvements in the commercial passenger vehicle industry;
(b) to facilitate competition and innovation in the industry;
(c) to improve the safety of drivers and passengers of commercial passenger vehicles;
(d) to promote public confidence in the safety of the commercial passenger vehicle industry.[14]

[14]Ibid s 115E.

The TSC’s functions are set out in s 115F of the TI Act. They include:

(a) administering licensing, accreditation and other requirements imposed on participants in the commercial passenger vehicle industry (s 115F(1)(b));[15]
[15]Section 115F(1)(b) was repealed by the Commercial Passenger Vehicle Industry Amendment (Further Reforms) Act 2017 (Vic) s 21 sch 1 item 11.13.

(b) administering grants made, or subsidy schemes established, in relation to the commercial passenger vehicle industry (s 115F(1)(c));

(c) promoting and monitoring compliance with any relevant legislation (s 115F(1)(d));

(d) monitoring, investigating and prosecuting breaches of any relevant legislation (s 115F(1)(db));

(e) conducting inquiries into any matter relating to the commercial passenger vehicle industry (s 115F(1)(dc));

(f) informing and educating the public about the operation and performance of the commercial passenger vehicle industry (s 115F(1)(dd)); and

(g) performing any other functions or duties conferred or imposed on the TSC under the TI Act or any other Act or regulations (s 115F(1)(f)).[16]

[16]Ibid s 115F(1); Taxi Services Commission, ‘Submissions for the Respondent’, Submission in Victorian Taxi Families Inc v Taxi Services Commission, S CI 2017 03730, 2 October 2017, [12] (Respondent’s Outline).

The TSC’s functions also include advising the lead transport agency (the Head, Transport for Victoria (TfV)) in order to assist TfV in developing strategic policy and legislation in relation to the commercial passenger vehicle industry.[17] However, by s 115F(2) of the TI Act, the TSC’s functions expressly do not include the function of developing strategic policy and legislation in relation to the commercial passenger vehicle industry.
[17]TI Act s 115F(1)(e).

The functions of the TSC that the applicants maintain to be relevant to the conduct, which the applicants have reasonable cause to believe give rights to obtain relief against the TSC, include the non-performance of express statutory duties and functions and ultra vires conduct of the TSC in respect of the administration of licence fees. The relevant functions are those in ss 115F(1)(b), (d) and (db) of the TI Act.

Commercial passenger vehicle means any motor vehicle (together with any trailer fore-car side-car or other vehicle or device, if any, attached thereto) which is used or intended to be used for carrying passengers for hire or reward but does not include a bus used to provide a bus service.[18] Generally, a commercial passenger vehicle must not operate on a highway unless it is licensed under pt VI div 5 of the TCM Act. The TSC may grant a commercial passenger vehicle licence to the owner or intending owner of a commercial passenger vehicle. Relevantly, two types of commercial passenger vehicle licences are hire car licences and taxi-cab licences.
[18]Transport (Compliance and Miscellaneous) Act 1983 (Vic) s 86 (TCM Act).

A hire car licence is a commercial passenger vehicle licence in respect of a vehicle that operates or is to operate as a hire car. A hire car means a commercial passenger vehicle classified as a hire car by the licensing authority under s 145 of the TCM Act.[19] The TSC has classified any type of vehicle which is used or intended to be used to provide a commercial passenger service for the carriage of passengers on a pre-booked only basis (but excluding a special purpose vehicle) as a hire car.[20]
[19]Ibid.
[20]Respondent’s Outline [15].

Taxi-cab means a commercial passenger vehicle which is used or intended to be used for hiring by the public on demand and which operates by being hailed or from a stand appointed for the use of such vehicles, or which has been previously booked or ordered but does not include such a vehicle which operates solely by being previously booked or ordered.[21] Taxi-cab licence means a commercial passenger vehicle licence in respect of a vehicle which operates or is to operate as a taxi-cab.[22]
[21]TCM Act s 86.
[22]Ibid.

Two types of taxi-cab licences are relevant for present purposes:

(a) Taxi-cab licences granted before 30 June 2014 have been granted on payment of a fee to the State and consideration of the application for licence. These licences are generally referred to as ‘perpetual licences’ or ‘fixed term licences’. These licences are generally transferable under s 149 of the TCM Act or assignable under s 150 of the TCM Act. A transfer passes the ‘ownership’ of the licence whilst an assignment passes the right to operate a vehicle under the licence. These licences were considered a form of statutory right, with a recognised character of property, and were traded on the Bendigo Stock Exchange;[23] and

(b) Taxi-cab licences granted after 30 June 2014 are ‘new taxi-cab licences’. New taxi-cab licences must be granted if the application for a new taxi-cab licence complies with the application requirements set out at ss 140 and 143 of the TCM Act. New taxi-cab licences are generally referred to as ‘annual licences’. New taxi-cab licences may be conventional (ie, sedans) or wheelchair accessible taxi-cab (WAT) licences.

[23]The traditional view of a licence of the kind described here as a perpetual licence, capable of being sold or assigned, is that it is property: Commissioner of Taxation (Cth) v Murry (1998) 193 CLR 605, [62], [67] (Murry’s Case).

The TSC is the licensing authority.[24] Part VI div 5 of the TCM Act contains the provisions regulating applications for and the grant of taxi-cab and hire car licences, including the payment of fees. The overarching provision, as the applicants described it, is s 139 of the TCM Act, which prohibits a commercial passenger vehicle from operating on any highway unless it is licensed in accordance with div 5.[25] In its capacity as the licensing authority the TSC receives and administers applications for commercial passenger vehicle licences.[26] There is also a statutory accreditation necessary to operate and drive a commercial passenger vehicle.[27] Section 130 of the TCM Act provides that the purpose of accreditation is to facilitate the provision of safe and reliable taxi-cab services that meet reasonable community expectations.
[24]TCM Act s 2.
[25]Subject to the regulations and to s 139(1B).
[26]TCM Act s 140.
[27]Ibid div 4 (ss 130–7E) regulates the accreditation of taxi-industry participants. Part VI div 6 (ss 163–9Z) further regulates accreditation and creates offences.

Section 143 of the TCM Act sets out the powers of the TSC in respect of applications for taxi-cab licences and in respect of the administration and collection of statutory fees in respect of statutory licenses. The TSC is empowered to determine the fees payable[28] which take effect upon publication in the Government Gazette or upon any later date specified in a notice accompanying the publication of the fees in the Government Gazette.[29] The holder of a commercial passenger vehicle licence must pay the appropriate annual licence fee determined under s 147B of that Act, in respect of every commercial passenger vehicle for which the holder has a licence. This did not apply to the holder of a new taxi-cab licence, who was required to pay a licence fee as set out in s 147A(2B) of the TCM Act.[30]
[28]Ibid s 147B.
[29]Ibid s 147B(3).
[30]Ibid ss 147A(2A), (2B).

Section 165 makes it an offence for a person to drive a commercial passenger vehicle (which is operating as a commercial passenger vehicle) on any highway without a driver accreditation. The TCM Act also creates offences; in particular, pursuant to s 158(1) it is an offence to own or operate a commercial passenger vehicle without a licence granted by the TSC.

The TSC’s regulatory power is supported by extensive powers of investigation, including powers to enter into a commercial passenger vehicle or commercial passenger vehicle premises,[31] general inspection, inquiry and search powers after such entry,[32] the power of seizure and ancillary investigatory powers,[33] and the power to require production of information or documents and related items[34] and, in respect of certain powers, the privilege against self-incrimination is abrogated.[35]
[31]Ibid ss 228RI–228RL.
[32]Ibid s 228RM.
[33]Ibid ss 228RR–228RS.
[34]Ibid ss 228RY–228RZ.
[35]Ibid s 228RZD.

Section 191YF of the TCM Act obliges the TSC to develop, maintain and review taxi industry monitoring, compliance and enforcement policy, the purpose of which:

is to support and promote maintaining compliance with, and enforcement of, a commercial passenger vehicle law or specified road safety law by —
(a)specifying proportionate, cost effective and efficient options in respect of monitoring and promoting compliance with, and enforcing, a commercial passenger vehicle law or specified road safety law; and
(b)specifying how options will be utilised by enforcement agencies to monitor and promote compliance with, and the enforcement of, a commercial passenger vehicle law and specified road safety law consistently.[36]

[36]Ibid s 191YF.

Section 191YF(3) requires the TSC to cause the taxi industry monitoring, compliance and enforcement policy to be published on the internet. Section 191YF(1) obliges the TSC to maintain and review the Policy.

The content of the taxi industry monitoring, compliance and enforcement policy is prescribed by s 191YI(1) of the TCM Act. Section 191YI provides that a taxi industry monitoring, compliance and enforcement policy must provide guidance on specified matters, including the exercise of monitoring and compliance powers, investigation powers and enforcement powers under a commercial passenger vehicle law or specified road safety law.

Section 191YJ provides that:

Persons involved in compliance, monitoring and enforcement activities under a commercial passenger vehicle law or specified road safety law must, so far as is reasonably practicable, have regard to an applicable taxi industry monitoring, compliance and enforcement policy when performing functions and duties and exercising powers under those laws.[37]

[37]Ibid s 191YJ.

The policy in force until 2018 was the Taxi Services Monitoring, Compliance and Enforcement Policy 2015 (Policy).[38] The Policy states that the TSC exercises its statutory authority fairly and credibly. It specifically refers to stakeholder and community expectations that commercial and passenger vehicle safety standards will be set at appropriate levels and will be effectively enforced. It goes on to list five principles by which the TSC is guided:
[38]Exhibit BLL:1 to the first Lincoln affidavit, 3.

(a) Accountable: To ensure full accountability, enforcement decisions and the conduct of staff will be explained and open to public scrutiny;

(b) Consistent: Like situations will be treated in a like manner. Industry participants need to have full confidence that the TSC’s decision-making and actions will be equitable and that comparable situations will have comparable outcomes;

(c) Transparent: Industry participants must be in no doubt as to the criteria used by the TSC in coming to a decision. Decisions and their reasons must be clearly communicated to relevant stakeholders;

(d) Proportionate: Decisions made by the TSC will be proportionate to the identified risk to safety or the seriousness of any perceived breach and the level of non-compliance with legislative requirements;

(e) Fair and Reasonable: The TSC seeks to strike the right balance between assisting voluntary compliance and undertaking enforcement actions, while responding to the competing interests of industry participants, stakeholders, government and the public.

This Policy, when read together with the legislative powers referred to above, is said by the applicants to provide a benchmark against which the TSC’s conduct can be assessed.[39]
[39]Exhibit BLL:1 to the first Lincoln affidavit, 3–4.

Reform of the commercial passenger vehicle industry

Ride–sharing vehicles were not generally licensed to carry passengers for hire or reward. Ride-sharing is a popular description of transport services provided by a private driver, for a fee, on the demand of a prospective passenger, through a smartphone or computer application. At the relevant time, most ride-sharing services were provided by UberX.[40]
[40]First Brnovic affidavit, [14].

In late April 2014, the TSC commenced a targeted compliance and enforcement strategy against UberX vehicles. This involved the TSC undertaking covert journeys in UberX vehicles and issuing penalty infringement notices (PINs) to owners and drivers of unlicensed commercial passenger vehicles. The strategy was then extended to overt compliance activities, where TSC Officers booked the UberX vehicles, which were subsequently intercepted by uniform TSC officers who interviewed the drivers and if an offence was committed issued PINs. The TSC’s compliance and enforcement strategy escalated beyond issuing PINs to filing charges against UberX drivers, using different methodologies for detecting unlawful behaviour.[41]
[41]Ibid [15].

In September 2014, the TSC charged 12 UberX drivers with offences against s 158(1) of the TCM Act. In October 2014, the TSC 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 TCM Act as well as an offence of driving a commercial passenger vehicle without holding a driver accreditation. On 18 May 2016, following a successful appeal to the County Court of Victoria, the findings of guilt were set aside.[42]
[42]Ibid [16]–[18].

By May 2016, the TSC had collected about $988,000 in fines for unlawfully operating commercial passenger vehicles against s 158(1) of the TCM Act. In late June 2016, the Victorian Government announced it would prepare legislation that would enable the legalisation of ride-sharing services.[43]
[43]Ibid [19]–[20].

On 23 August 2016, the Victorian Government announced reform to the commercial passenger vehicle industry (August Announcement). The announcement was by media release. After some hyperbole, it stated:[44]
[44]Exhibit SS:5 to the first Spanos affidavit, 1; First Spanos affidavit, [29].

Over the next two years, the current licencing regime will be replaced by a single registration system that will ensure high standards for all commercial passenger vehicles, including taxis, hire cars and ride share services.
The reforms to the commercial passenger industry will see:
·$378 million made available to provide fair and reasonable assistance to licence holders to help them transition to the new legislative framework.
·A $75 million Fairness Fund to provide targeted support to industry participants experiencing immediate financial hardship as a result of these changes, including $25 million to improve access to convenient, reliable point-to-point transport for people with a disability.
·All commercial passenger vehicle providers charged a levy equivalent to $2 per trip to fund the transition to the new system including support for existing licence holders during the transition.
·All existing licences removed to allow for more flexible fares to drive competition and reduce the cost of travel for passengers.
·All drivers accredited by the TSC which will include passing police, medical and driving history checks and all drivers will be subject to ongoing criminal data matching.
·An Australian first of a dedicated Commissioner for disability services to the TSC.
·Rank and hail work only open to those providers that meet stringent requirements including cameras and fare meters.
·The ineffective, inefficient and costly Knowledge Test abolished and replaced by a simple system of industry accountability for all drivers.

…
The Government will draft legislation to be introduced into Parliament this year which will reduce the hire car licencing fee to zero. A second piece of legislation will be introduced into Parliament next year which will enable the long term reform.
These changes will open the door for more ridesharing and taxi services to hit the road and drive innovation, to provide more choice and better services for passengers.

On the same day, the Department of Economic Development, Jobs, Transport and Resources (Department) published more detail on its website as to the industry assistance package referred to in the media release. That industry assistance package consisted of three components: assistance payments for eligible licence holders (transition assistance); rebates to annual and peak service licence holders (rebate policy); and a hardship fund (later known as the fairness fund).[45] The transition assistance was for taxi and hire car licence holders that had perpetual or fixed term licences where the licence fee was paid up front (not in annual instalments). These licence holders would receive assistance payments, and annual fee paying licence holders would receive a rebate if they renewed their licences over the transition period. The transition assistance also included payments for a maximum of two licences, $100,000 for the first licence and $50,000 for the second licence, with some variations according to whether they were metropolitan or regional licence holders. The criteria for payments of transition assistance were published and provided to affected licence holders. Eligibility depended upon the nature and number of licences held between 15 August 2016 and 14 July 2017. If a licence holder held four or more taxi licences, they were eligible for $250,000 in transition assistance.[46]
[45]First Brnovic affidavit, [23]–[24]; Exhibit SB:01 to the first Brnovic affidavit.
[46]First Brnovic affidavit, [26].

The Government decided to relieve new taxi-cab licence holders of their obligation to pay annual licence fees.[47] The statutory obligation on licence holders to pay their relevant licence fee remained but the effect of the rebate policy was that the TSC would not collect or pursue the applicable licensing fee during a period of transition. The TSC would also make payments to licence holders who had already paid the licence fee. Application and administrative fees continued to be payable.[48]
[47]Payable under TCM Act s 147A(2B).
[48]First Brnovic affidavit, [27].

On 30 November 2016, the Government announced that transition assistance would be payable for up to two further eligible licences (up to four licences in total) and reduced the timeframe for paying transition assistance.[49] There was no assistance given to licence holders with more than four perpetual licences revoked under the new legislation.
[49]Ibid [28]; Exhibit SB:3 to the first Brnovic affidavit.

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.[50] The Commercial Passenger Vehicle Industry Act 2017 (Vic) (CPVI Act) contains no provision creating any rights to transition assistance or compensation for the revocation of taxi-cab licences, or any other licences.[51]
[50]First Brnovic affidavit, [22], [29].
[51]Respondent’s Outline [30]; Victorian Taxi Families Inc and Redfield Court Holdings Pty Ltd, ‘Reply Submission on Behalf of the First and Second Applicants’, Submission in Victorian Taxi Families and Anor v Taxi Services Commission, S CI 2017 03730, 3 November 2017, [1(f)]–[1(g)] (Applicants’ Reply Submissions).

The CPVI Act does, however, recognise that transitional assistance will be provided. Amongst the ‘main purposes’ of the CPVI Act is:[52]

(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; …

[52]CPVI Act s 1(a).

Part 2 of the CPVI Act establishes a commercial passenger vehicle service levy. There is a specific regulation-making power to enable specification of the amount of the levy.[53] Section 20(2) provides that the Minister must not recommend the making of regulations specifying an amount of $1.00 or more as the amount of the levy, unless the Essential Services Commission (ESC) recommends the specification of that amount in accordance with s 20(3). Section 20(3) sets out that the ESC must not recommend the specification of an amount unless the ESC is satisfied that it is the lowest amount that is reasonably likely to result in the total amount of the levy collected within eight years of the commencement of pt 2 being equal to the money spent on transitional assistance.
[53]Ibid s 20.

Importantly, s 20(4) 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 apply to that industry, compared with the law as in force immediately before the commencement of the Act.

In the lead up to the August Announcement, members of the Executive of the VTF had attended a number of meetings with the Minister for Transport, Ms Jacinta Allan, and members of her team. Some of the meetings came about because the VTF contacted the Minister’s office and asked for a meeting. Others came about at the initiative of the office of the Minister. According to Ms Sandra Spanos, who is the President of the VTF, the VTF was recognised as a representative body of the taxi industry participants and a ‘force’ in the industry.[54] Under the leadership of Ms Spanos it nurtured relationships with the Government and Government agencies so as to have a voice in the reform debate.[55] Ms Spanos was invited, as President of the VTF, to participate in a Ministerial Forum set up by the Minister and also served on the forum’s sub-committee on ride-sharing.
[54]First Spanos affidavit, [31].
[55]Ibid [32].

In the months preceding the August Announcement, and in the months following that announcement, there were changes made by the TSC to the collection of licence fees for both annual and fixed term licences. The then holders of annual and fixed term licences were no longer required to pay an annual licence fee of $23,017 as well as an administrative fee of $538. Instead, only the administrative fee was payable. If a licence holder had already paid the full amount of the annual licence fee, the TSC provided a refund of it.[56]
[56]Ibid [36].

The TSC provided no reason for this change and the reduced fees were inconsistent with the gazetted annual fees for the 2016–17 financial year.[57] The changes to the fees payable were made through the TSC’s website. The announcement was that the existing annual fee paying licence holders will be provided with a rebate for the licence fee over the transition period.[58]
[57]Victoria, Transport (Compliance and Miscellaneous) Act 1983: Taxi Services Commission, No S 118, 28 April 2016; Exhibit SS:6 to the first Spanos affidavit.
[58]First Spanos affidavit, [36]–[37].

The Commercial Passenger Vehicle Industry Bill 2017 (Vic) (CPVI Bill) was introduced into the Victorian Parliament on 22 February 2017. It received the Royal Assent on 22 August 2017 (now the CPVI Act). The Minister had announced the passing of the CPVI Bill in a media release issued on 23 June 2017. One effect of the new law was to revoke taxicab 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 taxi-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.

The membership of the VTF includes individuals who either directly or through family trusts, superannuation funds or corporate structures, have held perpetual licences for many decades, purchased perpetual licences from the Government for up to $500,000 and borrowed from banks and financial institutions in order to purchase a perpetual licence, providing the licence as security for the loan.[59]
[59]Ibid [43].

These members often assigned the licences to operators who operated the vehicle and received the fare income. They therefore had assignment agreements in place at the time of the announcement of the reforms in August 2016. Before the August Announcement they were generating income in the order of $2,000 per month. After the announcement many of the assignees of members’ licences stopped making monthly payments or sought to terminate the assignment agreements. This happened to Redfield.[60]
[60]Mayas affidavit, [12]–[14].

All of these licence types were subject to regulation by the TSC, and before the TSC was established, by the Victorian Taxi Directorate. There was a high level of active regulation and enforcement by the TSC, including prosecution of any taxi or hire car driver or operator who breached regulatory or other legislative requirements, the accreditation of drivers, the approval of all licence assignments and the requirement that any change of ownership of licences be approved by the TSC.[61]
[61]First Spanos affidavit, [44].

In her role as President of the VTF, Ms Spanos saw the real and immediate impact of the Government’s announcement in August 2016 on members of the VTF and on the value of their assets, including annual, fixed term and perpetual licences. From August 2016 onwards, Ms Spanos received hundreds of text messages, emails and telephone calls from members seeking information about the reforms and expressing their concerns for their businesses. Many of the members were directly affected by the reform process and faced bankruptcy and ill-health caused by stress. Ms Spanos continues to speak daily to members who hold taxi licences and who now struggle to maintain their businesses. She is informed by these members that they cannot compete with unlicensed ride-sharing services where those services have not been subject to equal regulation by the TSC and have not been required to acquire licences for their vehicles. She states that:

(a) vehicles used for ride-sharing are not subject to commercial passenger registration rates because they are not licensed. The difference between the annual VicRoads metropolitan registration fee for a domestic vehicle ($800.80) and a metropolitan licensed taxi cab ($2,800) is significant;

(b) vehicles used for ride-sharing are not required to be fitted with security cameras, cab charge machines, duress alarms, a trip meter, GPS tracking, EFTPOS machines and decals showing with which network the car is affiliated, and are not subject to regular inspection by the TSC for compliance with regulatory requirements; and

(c) drivers of ride-sharing vehicles do not have the significant overheads of either loan repayments for the purchase of perpetual licences or ongoing assignment fees for perpetual, annual or fixed term licences.[62]

[62]Ibid [45]–[46].

The VTF maintains that the TSC’s failure or refusal to enforce its monitoring, compliance and enforcement policy[63] and the licensing laws in respect of all participants in the commercial passenger vehicle industry, and in particular against those engaged in ride-sharing services, has had a devastating impact on members of the VTF and on all licensed participants in the industry.[64]
[63]The TSC published such a policy in 2015: First Spanos affidavit, [26]; Exhibit SS:3 to the first Spanos affidavit.
[64]First Spanos affidavit, [47].

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. No one was interested in purchasing a licence which was to be revoked. 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 TSC.[65] According to Ms Spanos, from her own observation, both the introduction of unlicensed ride-sharing services and the apparent failure of the TSC to enforce the prohibition on carrying passengers for reward without being licensed has adversely impacted on the value of taxi-cab licences.[66]
[65]Ibid [50].
[66]Ibid [51].

Ms Spanos gives evidence of ride-sharing services operated by Uber doing so illegally at major Melbourne events over the 12 months prior to September 2017. There were unofficial Uber ranks set up at the Caulfield Race Course for the Caulfield Cup on 15 October 2016 and at the Grand Prix in March 2017. There is no evidence of any action being taken by or on behalf of the TSC in relation to these activities. When Ms Spanos enquired of the TSC regarding these activities she was told that no action could be taken because the ranks were on private land.[67]
[67]Ibid [52].

These activities led Ms Spanos to believe that the Government or the TSC, or both, had decided not to enforce the licensing laws for political reasons, including not alienating consumers who liked to use rideshare services. But the VTF has been unable to obtain sufficient information from its enquiries to decide whether to bring an action against the TSC for conduct which it believes shows that it has not enforced and upheld the laws which it was its function and duty to do. Ms Spanos deposes that the Government and the TSC has disclosed much information during the reform period but not whether the TSC or the Minister decided to facilitate rideshare competition with the licensed taxi-cab sector:

In terms which chose winners and losers and a failure to maintain or deliberate disobedience of the law or a failure to observe commercial passenger vehicle laws or allowing the TSC to exercise discretion it did not have to treat the licensing laws and fee administration as obligatory for some but discretionary for others.[68]
[68]Ibid [53].

Preliminary discovery — applicable principles

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).

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 TSC;

(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 TSC to obtain that relief; and

(c) there is reasonable cause to believe that the TSC 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).

In Schmidt v Won,[69] Ormiston JA, with whom Charles and Batt JJA agreed, explained the purpose of, and the Court’s approach to, the rule:

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.[70]

[69][1998] 3 VR 435.

[70]Ibid 445 (citations omitted).

In Beston Parks Management Pty Ltd v Sexton (Beston Parks),[71] Hollingworth J said in relation to the application of r 32.05:[72]

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.

[71][2008] VSC 392 (Beston Parks).

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

In St George Bank Ltd v Rabo Australia Ltd (St George)[73] 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:

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.

[73](2004) 211 ALR 147, 155 [28] (St George).

In St George,[74] 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)[75] 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’.[76]
[74]Ibid [26(e)].
[75][2004] FCA 679 [73] (Emmett J).
[76]St George (2004) 211 ALR 147, 154 [26(d)].

In the recent decision of Alex Fraser Pty Ltd v Minister for Planning,[77] Riordan J observed in relation to the first prerequisite (r 32.05(a)) that it:
[77][2018] VSC 391.

(a) does not direct attention to any belief of the applicant. Rather it requires reasonable cause for a hypothetical belief;[78]
[78]Ibid [47], citing Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy and Another (2008) 166 FCR 64, 79 [59] (French, Weinberg and Greenwood JJ).

(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;[79]

(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;[80] and

(d) a reasonable suspicion, conjecture or assertion may each fall within the ambit of a reasonable belief;[81]

[79]Alex Fraser Pty Ltd v Minister for Planning [2018] VSC 391, [46]–[49], citing, eg, Schmidt v Won [1998] 3 VR 435, 445 (Ormiston JA with whom Charles and Batt JJA agreed).

[80]Alex Fraser Pty Ltd v Minister for Planning [2018] VSC 391, [51].

[81]Ibid [52].

His Honour then said:[82]

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.

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

For these reasons, Riordan J concluded that the jurisdictional threshold under r 32.05 is low, which is consistent with the following:[83]
[83]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.

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;[84]
[84]Plzen Pty Ltd v P&O Wharf Management Pty Ltd [2007] VSC 318, [17(e)].

(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;[85]
[85]Schmidt v Won [1998] 3 VR 435, 465; Beston Parks [2008] VSC 392, [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;[86]
[86]Schmidt v Won [1998] 3 VR 435, 465; Beston Parks [2008] VSC 392, [53].

(d) the test for determining whether the applicant has ‘reasonable cause to believe’ is an objective test;[87]

(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;[88] and

(f) delving extensively into the merits of the existence of a possible cause of action will usually not be appropriate.[89]

[87]Plzen Pty Ltd v P&O Wharf Management Pty Ltd [2007] VSC 318, [17(c)].

[88]Beston Parks [2008] VSC 392, [53].

[89]Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64, 78 [53] (French, Weinberg and Greenwood JJ); Alex Fraser Pty Ltd v Minister for Planning, [2018] VSC 391 [54(c)].

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;[90]
[90]Morton v Nylex Ltd [2007] NSWSC 562, [33].

(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;[91]
[91]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;[92]
[92]Morton v Nylex Ltd [2007] NSWSC 562, [33].

(d) the requirement is primarily concerned with whether, as an objective fact, an applicant has sufficient information to determine whether to commence proceedings.[93] 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.[94] An applicant in that position may nevertheless ‘need information to know whether the cost and risk of litigation is worthwhile’.[95] 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’;[96]
[93]Ibid [55].
[94]BJ Bearings Pty Ltd v Whitehead [2016] VSC 44, [19(2)] (BJ Bearings).
[95]Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (2008) 169 FCR 435, 443; BJ Bearings [2016] VSC 44, [19(2)].
[96]St George (2004) 211 ALR 147, 154 [26(f)] (citations omitted); BJ Bearings [2016] VSC 44, [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;[97]
[97]Beston Parks [2008] VSC 392, [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;[98]
[98]Ibid [55].

(g) courts have, however, approved litigants taking a cautious, conservative or prudent approach by applying for preliminary discovery under the rule.[99] This approach is consistent with the policy underlying the rule.[100] 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;[101]

(h) if there is evidence that an applicant has in fact decided to commence proceedings, the application must fail.[102] 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;[103] and

(i) what constitutes ‘reasonable inquiries’ is a question of fact, to be considered in all the circumstances of the particular case.[104]

[99]Australian Football League v Stadium Operations Ltd [2009] VSC 264, [59]–[61] (AFL v SOL); United Energy [1998] VSC 133, [103].

[100]AFL v SOL [2009] VSC 264, [61]; BJ Bearings [2016] VSC 44, [19(3)].

[101]BJ Bearings [2016] VSC 44, [19(3)].

[102]Beston Parks [2008] VSC 392, [56].

[103]AFL v SOL [2009] VSC 264, [59]–[62]; BJ Bearings [2016] VSC 44, [19(4)].

[104]Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506, 528 [86]; BJ Bearings [2016] VSC 44, [19(5)].

For the purpose of the third prerequisite:

(a) ‘possession’ means ‘possession, custody or power’;[105]

(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.

[105]Rules r 32.01.

Where each element of the rule is satisfied, the Court will ordinarily exercise its discretion in favour of the applicant.[106]
[106]AFL v SOL [2009] VSC 264, [76].

Parliamentary privilege — applicable law

In the course of oral submissions the TSC objected to the use of certain evidence by the applicants, being:

(a) Exhibit SB:04, which is an extract from the transcript of a hearing before the Inquiry into the CPVI Bill conducted by the Economy and Infrastructure Committee of the Victorian Parliament (EI Committee), dated 23 May 2017;

(b) Exhibit BLL:9, which is a report of the Scrutiny of Acts and Regulations Committee of the Victorian Parliament dated 7 March 2017;

(c) Exhibit BLL:10, which is a report of the Scrutiny of Acts and Regulations Committee of the Victorian Parliament dated 21 March 2017;

(d) Exhibit BLL:11, which is a report of the EI Committee dated 8 June 2017;

(e) Exhibit BLL:13, which is another extract from the transcript of a hearing before the Inquiry into the CPVI Bill conducted by the EI Committee, dated 23 May 2017;

(f) Exhibit BLL:15, which is a written submission made to the Inquiry into the CPVI Bill conducted by the EI Committee, dated 31 May 2017; and

(g) Exhibit BLL:22, which is an extract from Hansard recording the debate on the CPVI Bill in the Legislative Council of the Victorian Parliament on 23 June 2017.

The basis of the TSC’s objections was that the use of such evidence contravened parliamentary privilege. Section 10(1) of the Evidence Act 2008 (Vic) preserves parliamentary privilege, providing:

This Act does not affect the law relating to the privileges of any Australian Parliament or any House of any Australian Parliament.

Section 19(1) of the Constitution Act 1975 (Vic) provides:

The Council and the Assembly respectively and the committees and members thereof respectively shall hold enjoy and exercise such and the like privileges immunities and powers as at the 21st day of July, 1855 were held enjoyed and exercised by the House of Commons of Great Britain and Ireland and by the committees and members thereof, so far as the same are not inconsistent with any Act of the Parliament of Victoria, whether such privileges immunities or powers were so held possessed or enjoyed by custom statute or otherwise.[107]

[107]Constitution Act 1975 (Vic) s 19(1).

To ascertain what were the relevant privileges immunities and powers enjoyed and exercised by the House of Commons on 21 July 1855, it is necessary to start with the Bill of Rights 1688 (Bill of Rights),[108] art 9 of which provided:

Freedom of Speech – That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament.[109]

[108]Bill of Rights 1688 (Eng) 1 Wm & M, c 2 art 9.

[109]Quoted in Prebble v Television New Zealand Ltd [1995] 1 AC 321, 332 (Prebble); see also Comalco Ltd v Australian Broadcasting Corporation (1983) 50 ACTR 1, 3 (Blackburn J) (Comalco).

The Commonwealth Parliament has purported to state the effect of art 9 (without limiting its effect) in s 16 of the Parliamentary Privileges Act 1987 (Cth) (PPA), which provides:

(1)For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.
(2)For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:
(a)the giving of evidence before a House or a committee, and evidence so given;
(b)the presentation or submission of a document to a House or a committee;
(c)the preparation of a document for purposes of or incidental to the transacting of any such business; and
(d)the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.

(3)In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:
(a)questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;
(b)otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or
(c)drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

(4)A court or tribunal shall not:
(a)require to be produced, or admit into evidence, a document that has been prepared for the purpose of submission, and submitted, to a House or a committee and has been directed by a House or a committee to be treated as evidence taken in camera, or admit evidence relating to such a document; or
(b)admit evidence concerning any oral evidence taken by a House or a committee in camera or require to be produced or admit into evidence a document recording or reporting any such oral evidence;

unless a House or a committee has published, or authorised the publication of, that document or a report of that oral evidence.

(5)       In relation to proceedings in a court or tribunal so far as they relate to:
(a)       a question arising under section 57 of the Constitution; or
(b)       the interpretation of an Act;
neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission in evidence of a record of proceedings in Parliament published by or with the authority of a House or a committee or the making of statements, submissions or comments based on that record.
(6)In relation to a prosecution for an offence against this Act or an Act establishing a committee, neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission of evidence, the asking of questions, or the making of statements, submissions or comments, in relation to proceedings in Parliament to which the offence relates.
(7)Without prejudice to the effect that article 9 of the Bill of Rights, 1688 had, on its true construction, before the commencement of this Act, this section does not affect proceedings in a court or a tribunal that commenced before the commencement of this Act.[110]

[110]PPA s 16.

The PPA was passed in consequence of the decisions of Cantor J and of Hunt J in R v Murphy,[111] with a view to clarifying the scope or operation of the Bill of Rights in certain particulars.[112]
[111]The decision of Cantor J is unreported. The decision of Hunt J is at (1986) 5 NSWLR 18.
[112]See Laurance v Katter [2000] 1 Qd R 147, 203; Rann v Olsen (2000) 76 SASR 450, 468–9; Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223, 229 (Beaumont J); Prebble [1995] 1 AC 321, 333.

The TSC submitted that s 16(3) codifies the effect of art 9 of the Bill of Rights. This view gains its support from the language of s 16(1), from the Second Reading Speeches in the House and the Senate when the Bill for the PPA was before each House of the Parliament[113] and from the Privy Council decision of Prebble.[114] In Prebble, Lord Browne-Wilkinson, giving the Speech for the Privy Council, said:

That Act, therefore, declares what had previously been regarded as the effect of article 9 of the Bill of Rights 1689 and s 16(3) of the Act of 1987 contains what, in the opinion of their Lordships, is the true principle to be applied.[115]

[113]See the reasons of Davies JA in Laurance v Katter [2000] 1 Qd R 147, 202–4.

[114]Prebble [1995] 1 AC 321, 333.

[115]Ibid.

There are, however, views that s 16 of the PPA extends the operation or effect of art 9:

(a) in Rann v Olsen, Doyle CJ (Mullighan J agreeing) proceeded on the hypothesis that s 16 extends the reach of art 9 of the Bill of Rights.[116] He considered that the language of s 16(1) indicates that Parliament contemplated that the subsequent provisions of s 16 might have an operation additional to that of art 9, and s 16(7) contemplates that s 16 might have an operation different from art 9, which might be wider or narrower. Prior J considered that the section was declaratory of the privilege or immunity conferred by art 9.[117] Perry J considered s 16 extended the operation of art 9 because art 9 is not couched in terms that address the purpose for which the impeaching of questioning might be directed, whereas s 16(3) is so framed by the use of the words ‘…by way of, or for the purpose of…’.[118] He further considered that the ambit of s 16(3) is so wide that it is unlikely that the scope of any residual operation of art 9 could amount to much.[119] Lander J did not consider it necessary to assess whether the PPA is declaratory of art 9;

(b) in Mees v Roads Corp,[120] Gray J considered that, because of the views expressed in Pepper v Hart,[121] there must be some doubt as to whether s 16(3) is merely a codification of the law, or effects a change in the law by enlarging the privileges of Parliament; and

(c) at least one learned author has expressed the view that s 16(3) goes beyond mere codification.[122]

[116]Rann v Olsen (2000) 76 SASR 450, 461, 468–9, 485; Mees v Roads Corp (2003) 128 FCR 418, 445 [84] (Gray J).

[117]Rann v Olsen (2000) 76 SASR 450, 490.

[118]Ibid 492.

[119]Ibid 493.

[120](2003) 128 FCR 418, 441–6 [72]–[87].

[121][1993] AC 593.

[122]Enid Campbell, ‘Parliamentary Privilege and Admissibility of Evidence’ (1999) 27 Federal Law Review 367, 381.

It is neither necessary nor appropriate in this case to resolve the question of whether s 16 of the PPA codifies or extends the operation of art 9 of the Bill of Rights, because whichever is applicable the admissibility of much of the material sought to be tendered is tolerably clear, as I shall refer, after referring to some further authorities and attempting a form of summary of the law as to parliamentary privilege.

Most of the cases on the interpretation of art 9 of the Bill of Rights and s 16 of the PPA concern issues raised in defamation cases. Mees v Roads Corp[123] was not a defamation proceeding. It concerned the tender in evidence by the respondents of the Hansard reports of statements made by the second respondent, Mr Batchelor, the Minister for Transport, to the Legislative Assembly of the Victorian Parliament, that there was no plan to build a freeway linking the Eastern Freeway with the Metropolitan Ring Road, and a question and answer in the Legislative Council on the same subject. It was contended that these reports could be tendered and relied upon to establish the truth of the statements, but could not be questioned. In that case Gray J provides an analysis of parliamentary privilege and said:

It appears to have been established that a court is able to receive evidence, by way of the tender of the records of parliamentary proceedings in Hansard, that a particular member addressed the House on a particular date at a particular time, because this is nothing other than historical record. At one time, there was a controversy as to whether the court could receive evidence of the words spoken, as distinct from evidence that something was said, but this appears to have been resolved in favour of the view that the words spoken can be tendered in evidence. See Comalco Ltd v Australian Broadcasting Corporation (1983) 78 FLR 449 at 451 – 453 and Buchanan v Jennings [2002] 3 NZLR 145 at 158 – 159. The English courts do not appear to have found it difficult to examine the content of a statement to parliament in one circumstance. That is where the statement contains a minister’s reasons for a decision of which judicial review is sought. Apparently, examination of the content of such a statement, even for the purpose of considering whether the decision is so unreasonable that no reasonable decision-maker could have made it, is not considered to be impeaching or questioning the statement. See R v Secretary of State for the Home Department; Ex parte Brind [1991] 1 AC 696. With this exception, it seems that any form of critical examination of the content of what has been said to parliament will not be undertaken by a court. It is certainly not permissible to tender the content of a statement to parliament for the purpose of proving that it was false or misleading. See Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223, a case decided under the Parliamentary Privileges Act 1987 (Cth), and Hamilton v Al Fayed [2001] 1 AC 395 at 403 per Lord Browne-Wilkinson, with whom the other members of the House of Lords agreed.

Interference with policy of legislative functions

Would such a duty impose liability with respect to the respondent’s exercise of ‘core policy-making’ or ‘quasi-legislative’ functions? There is no reason at this stage to think that the imposition of liability on the TSC would interfere with its core policy making or quasi-legislative functions, as distinct from those of the Government.

Other supervening reasons

Are there any other supervening reasons in policy to deny the existence of a duty of care (eg, the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? No, not at this stage.

Other matters

In considering whether Redfield may have reasonable cause to believe that it has a right to obtain relief against the TSC for common law negligence in the performance of its duties, functions and powers, I am reminded that there is no particular legal test that is applied to determine whether, in a given set of circumstances, a public authority owes a duty of care in connection with the exercise of a statutory power or discretion.[368] The approach is a multi-factorial one, having regard to the ‘salient features’ of the circumstances.[369] As Gummow and Hayne JJ said in Graham Barclay:[370]
[368]See Stuart v Kirkland-Veenstra (2009) 237 CLR 215, 260–1 [131]–[134] (Crennan and Kiefel JJ). See also Hunter Area Health Service v Presland (2005) 63 NSWLR 22, 26–7 [7] (Spigelman CJ); Sutherland Shire Council v Becker [2006] NSWCA 344, [19] (Giles JA), [82] (Bryson JA); Respondent’s Further Submissions [29].
[369]For a non-exhaustive list of ‘salient features, see Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649, 676 [102]–[103]. See also Plaintiff S99/2016 v Minister for Immigration and Border Protection (2016) 243 FCR 17, 70 [203] (Plaintiff S99); Respondent’s Further Submissions [29].
[370](2002) 211 CLR 540, 596 [146]–[149] (citations omitted).

[146]The existence or otherwise of a common law duty of care allegedly owed by statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.
[147]Where the question posed above is answered in the affirmative, the common law imposes a duty in tort which operates alongside the rights, duties and liabilities created by statute.

…..
[149]An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multifaceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute.

Although it is true that, generally speaking, a public authority which has no duty or obligation to exercise a statutory power will not owe any person a duty of care to exercise that power,[371] the multifaceted inquiry that needs to be undertaken may disclose that a duty exists.
[371]Sutherland (1985) 157 CLR 424, 459–60 (Mason J). See also Plaintiff S99 (2016) 243 FCR 17, 74 [216].

It should be noted, however, that so far as the applicants rely upon the so called ‘intersection between statutory and public powers and private rights’ (above at para [229]), the observations of Mason J in Sutherland stand in the way:

Moreover, although a public authority may be under a public duty, enforceable by mandamus, to give proper consideration to the question whether it should exercise a [statutory] power, this duty cannot be equated with, or regarded as a foundation for imposing, a duty of care on the public authority in relation to the exercise of the power. Mandamus will compel proper consideration by the authority of its discretion, but that is all.[372]

[372](1985) 157 CLR 424, 467; see also Crimmins (1999) 200 CLR 1, 35 (McHugh J); Graham Barclay (2002) 211 CLR 540, 555 [9], 562 [32] (Gleeson CJ); Gorringe v Calderdale Metropolitan Borough Council [2004] 2 All ER 326, 353.

Another difficulty facing any consideration of liability of the TSC for economic loss suffered by Redfield in consequence of a breach of a common law duty by the TSC is the seemingly inevitable fact that the CPVI Act revoked all perpetual and other licences without any right to compensation for a loss of property. That may mean (not must mean) that there can be no loss or damage suffered by a licence holder whose licence has been so revoked.

Enquiries made

The applicants’ evidence of the enquiries made is primarily in the affidavits of their solicitor, Bronwyn Lisa Lincoln. She deposes to the enquiries that the applicants have made to obtain information sufficient to enable the applicants to decide whether to commence a proceeding to obtain relief.[373] These enquiries include correspondence with the TSC and individual TSC Commissioners requesting production of documents,[374] letters to the Minister requesting production of documents[375] and an application to the TSC for production of documents under the Freedom of Information Act 1982 (Vic) (FOI Act).[376]
[373]First Lincoln affidavit, [3]–[13].
[374]Exhibits BLL:1, BLL:7 and BLL:21 to first Lincoln affidavit.
[375]Exhibits BLL:12 and BLL:16 to first Lincoln affidavit.
[376]Exhibit BLL:17 to first Lincoln affidavit.

The response to the enquiries made to the TSC in February 2017 was that the documents requested were publicly available or would not be in the public interest to disclose.[377] That response did not identify which of the documents requested were publicly available and which would not be disclosed in the public interest. Nor were any reasons advanced for the proposition that it was not in the public interest to disclose some of the documents. That provoked Ms Lincoln to write in May 2017 confirming that the documents requested did not include any documents that were publicly available and invited the TSC to articulate the basis for the claim for public interest immunity. There was no response to that letter.[378]
[377]First Lincoln affidavit, [11]; Exhibit BLL:6 to first Lincoln affidavit.
[378]First Lincoln affidavit, [13].

The TSC’s response to the Freedom of Information (FOI) request was that it would substantially and unreasonably divert the resources of the TSC from other operations, relying on s 25A of the FOI Act.[379] Because of the subsequent passage through Parliament of the CPVI Act on 22 August 2017, it was decided by the applicants to proceed with this preliminary discovery application rather than by application under the FOI Act.
[379]Exhibit BLL:19 to first Lincoln affidavit.

The applicants rely on Roads & Traffic Authority of NSW v Australian National Car Parks Pty Ltd,[380] in which Mason P found that the scope of reasonable inquiries in a preliminary discovery application does not extend to an obligation by an applicant to file an FOI request prior to filing an application for preliminary discovery.[381]
[380][2007] NSWCA 114.
[381]Applicants’ Reply Submission [75].

The TSC does not contend that the applicants were required to make an FOI request in order to be said to have made ‘all reasonable inquiries’. It did contend, however, that the applicants must adduce some evidence to show that, before making this application, they took steps to obtain the documents sought from other entities likely to hold them. There was no evidence that the applicants had taken any steps to request documents in Category 2 from the Department, the Minister, the Commonwealth Department of Social Services, Centrelink, or any other part of the Victorian Government or the Commonwealth Government. Nor was there evidence that the applicants took any steps to request documents in Category 7 from the Minister, the Minister’s office, or any other part of the Victorian Government.

In so far as these alleged failures concern requests of the Minister, it appears that no response was received from her to letters of request.[382] The first letter to the Minister specifically sought documents of the kind in Categories 1 and 2.[383] The second letter repeated the request.[384] It seems likely that had further specific requests been made there would not have been a response.
[382]First Lincoln affidavit, [15].
[383]Exhibit BLL:12 to the first Lincoln affidavit, 9.
[384]Exhibit BLL:16 to the first Lincoln affidavit.

The TSC also complains that except for the documents in Category 1, many of the documents sought were generated outside the TSC and the applicants have not provided evidence of any attempt to obtain those documents from the bodies that created them.[385] This is a matter of minor materiality. The documents in Categories 3, 4 and 5 are internal to the TSC so this objection does not apply to them. The documents in Categories 6, 7 and 9 are documents received by the TSC and it seems to me that inquiry of the TSC is sufficient, and that prospect of a different response from the Minister or the Department is fanciful.
[385]Respondent’s Outline [5], [107].

Documents in Categories 1, 2 and 8 could not be relevant to a common law claim for damages for negligence of the kind I have identified, being a breach of a duty in relation to the monitoring and enforcement of the commercial passenger vehicle licencing requirements in relation to ride-share operators and participants before the August Announcement, giving rise to lost income or the decline in value of the perpetual licences held by Redfield had it sold the licences before the August Announcement. The other categories (Categories 3, 4, 5, 6, 7 and 9) do seem to relate to the existence or breach of such a duty.

The applicants submitted that they do not have sufficient precise information upon which to conclude a view as to the exercise and non-exercise or negligent exercise by the act or omission of the TSC of its extensive monitoring, compliance and enforcement duties to enable it presently to decide whether to bring an action against the TSC.[386] I have already referred to the assertions made in the affidavits in support.[387] It is clear enough, however, that the applicants rely upon the identified categories of documents in Annexure A, and on the submissions made in support of the application, to identify what they lack, and what they need, in order to make a decision. In the context of the multifactorial exercise involved in the identification of whether a public authority owes a common law duty of care to the holders of statutory licences to avoid causing them pure economic loss, whether any such duty has been breached and whether that breach has, or those breaches have, caused them injury, the documents identified in Categories 3 to 9 in Annexure A may inform any decision whether to commence proceedings.
[386]Applicants’ Outline [20].
[387]Mayas affidavit, [21]; First Spanos affidavit, [60]; First Lincoln affidavit, [28].

There is also clear authority that an application for preliminary discovery may be sustained either entirely or in relevant part where the applicants seek discovery about what defences are available to the TSC and the possible strength of those defences, or to determine the extent of the TSC’s breach and likely quantum of any damages award.

In relation to some documents in the relevant categories, the TSC claims that they will include documents subject to public interest immunity and that they will be immune from inspection by Redfield by the operation of s 130 of the Evidence Act 2008 (Vic). That may be so, but consideration of what documents may be affected in this way is premature. It is impossible at this stage to anticipate whether that issue will inhibit inspection of any and if so what documents.

Reasonable cause to believe respondent has documents that would assist applicant

The applicants’ belief that the TSC would have the documents requested in this proceeding, in its possession, is based on the statutory powers, functions and duties of the TSC and its role as the statutory regulating authority of the commercial passenger vehicle industry.[388] The applicants submit, and I agree, that documents generated from outside the TSC may nevertheless have likely come into the TSC’s possession in relation to its performance as the statutory regulator of the commercial passenger vehicle industry or because of its extensive role in administering the Government’s reform of the commercial passenger vehicle industry.[389]
[388]First Lincoln affidavit, [24].
[389]Ibid.

Categories of documents to be discovered

The limited right to relief I have identified, being the possible breach of a duty of care that Redfield may have (and a related declaration) relating to the monitoring and enforcement of the licencing requirements of the law in relation to:

(a) ride-share operators and participants; and

(b) the failure to collect licence fees and the rebate of licence fees already paid,

giving rise to damage, means that only some categories of documents sought are relevant.

It seems to me that this restricts discovery to documents in Categories 3, 4, 5, 6, 7 and 9 insofar as they concern monitoring and enforcement of the licencing requirements of the law to the August Announcement (in relation to ride-share operators and participants) and after the August Announcement (in relation to the failure to collect licence fees and the rebate of licence fees already paid). In relation to all these categories the descriptions may be too broad. So for example, Category 6 refers to any document authorising or directing TSC officers not to perform or enforce the functions expressed in s 115F of the TI Act. That is a wide field and encompasses both directions by the Minister and internal TSC directions in relation to many functions that will not be relevant. It is also likely that, when refined, there is considerable overlap between the categories. It will be necessary to hear the parties further as to the appropriate definition of the categories of documents and as to the appropriate orders.

Conclusion

For the reasons above, Redfield, and not the VTF, is entitled to preliminary discovery of some of the documents generally described in Categories 3, 4, 5, 6, 7 and 9 in Annexure A to these reasons. It will be necessary for the parties to make further submissions as to the description of the documents to be discovered.

Annexure A
1Any document recording or referencing the financial and/or economic modelling and/or calculations undertaken by or on behalf of or at the request of the Victorian Government for the purpose of determining the amount and extent of ‘transition assistance’ offered to holders of perpetual taxi licences in Victoria as referred to, inter alia:
(a)on the website of the Economic Development, Jobs, Transport and Resources Department at align="left">(b)in letters sent by the TSC last week to holders of perpetual licences following the passing of the Commercial Passenger Vehicle Industry Act 2017 (Vic); and
(c)the Hansard debate of 23 June 2017 at page 3767,
and dated between 23 August 2016 and 30 November 2016;

2Any document constituting an evaluation made by the Minister for Transport (Minister), the Victorian Government and/or the TSC of any advice or recommendation which informed the announcement of the TSC regarding the ‘value’ of perpetual licences for the purpose of Centrelink applications (accessed via the following link on the TSC’s website: policy document or instruction or guidance document generated within the TSC and/or applied for the TSC’s internal purposes dated between 1 December 2015 and 23 August 2016 recording the manner in which the TSC would administer licensing of commercial passenger vehicles, including the collection of fees applicable to both perpetual and annual taxi licences, and, specifically and without limiting the generality of the request, documents recording or evidencing or referencing a decision or instruction or directive to:
(a)provide a fee rebate to holders of fixed term or annual licences;
(b)waive payment of the full annual or fixed term tax licence fee; or
(c)require new applicants for annual taxi licences to pay the full annual licence fee plus the administrative fee,

but excluding all documents applicable to specific licence holders and the payment of, or rebate of, licence fees for those individual licence holders.
4Any document generated within the TSC and/or for the TSC’s internal purposes dated between 1 December 21015 and 23 August 2016 recording the manner in which the TSC will promote and monitor compliance of commercial passenger vehicles (including ride sharing services) with relevant legislation, including any differentiation between different categories of commercial passenger vehicles.
5Any document dated between 1 December 2015 and 23 August 2016:
(a)recording or evaluating the TSC’s compliance (or otherwise) with the Taxi Services TSC Monitoring, Compliance and Enforcement Policy 2015 (Policy); and
(b)directing, promoting, requesting or evidencing conduct of the TSC which is inconsistent with the Policy;

6Any document dated between 1 December 2015 and 23 August 2016 authorising or otherwise directing TSC officers to not perform or enforce the functions expressed in section 115F of the Transport Integration Act 2010 (Vic), being, inter alia:
(a)to administer licensing, accreditation and other requirements imposed on participants in the commercial passenger vehicle industry (sub-s 115F(1)(b));
(b)to promote and monitor compliance with any relevant legislation (sub-s 115F(1)(d)); and
(c)to investigate and prosecute breaches of any relevant legislation (sub-s 115F(1)(db)),
(collectively referred to as functions)

7Any document dated between 1 December 2015 and 23 August 2016 from the Minister or the Minister’s office to the TSC and/or any of the TSC’s staff or officers evidencing or recording an instruction, direction or request in relation to the manner in which the TSC is to carry out its functions.
8Any document evidencing or recording a direction from the Minister or of the TSC for the purpose of the TSC’s exercise of function, duty and power pursuant to, or in relation to:
(a)section 115F(1)(dc) of the Transport Integration Act 2010 (Vic); or
(b)section 115F(1)(de) of the Transport Integration Act 2010 (Vic), relevant to the reforms announced by the Government in August 2016

but excluding any document which relates specifically to a particular licence holder.
9Any document dated between 1 December 2015 and 23 August 2016 constituting or containing a directive to any employee or agent of the TSC in relation to the quantum of fees to be charged for any perpetual, fixed term or annual taxi licence administration and processing of taxi licences, including any applicable rebate or refund.

[2018] VSC 594

12 October 2018