YD v The Commonwealth of Australia
[2006] WADC 33
•14 MARCH 2006
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: YD -v- THE COMMONWEALTH OF AUSTRALIA [2006] WADC 33
CORAM: MAZZA DCJ
HEARD: 23 JANUARY & 14 FEBRUARY 2006
DELIVERED : 14 MARCH 2006
FILE NO/S: CIVO 189 of 2005
BETWEEN: YD
Applicant
AND
THE COMMONWEALTH OF AUSTRALIA
Potential Party
Catchwords:
Practice and procedure - Application for preaction discovery - Whether requirements of O 26A r 4 of the Rules of the Supreme Court have been satisfied - Turns on own facts
Legislation:
District Court of Western Australia Act 1969, s 50(1)(a)
Judiciary Act 1903 (Cth), s 56
Rules of the Supreme Court 1971, O 26A r 4
Result:
Application granted in part
Representation:
Counsel:
Applicant: Mr M D Evans
Potential Party : Mr P R Macliver
Solicitors:
Applicant: Corser & Corser
Potential Party : Australian Government Solicitor
Case(s) referred to in judgment(s):
Aquila Resources Ltd & Anor v Pasminco Ltd (Administrators Appointed) & Ors [2002] WASC 53
Gibson v Australia & New Zealand Banking Group, unreported; SCt of Victoria; BC9102880; 30 August 1991
Jones v Swansea City Council [1990] 1 WLR 54
McCarthy & Ors v Dolpag Pty Ltd [2000] WASCA 106
Northern Territory of Australia & Ors v Mengel & Ors (1995) 185 CLR 307
Rexha v Curtin University of Technology [2002] WASC 152
Sanders v Snell (No 2) [2003] FCAFC 150
Tipperary Developments Pty Ltd v Western Australia (1991) 21 WAR 250
Case(s) also cited:
Goldie v Commonwealth of Australia (2000) 180 ALR 609
Davis & Ors v Sagar Pty Ltd & Anor, unreported, SCt of WA; Library No 980443, 10 August 1998
St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147
Rush v Commissioner of Police [2006] FCA 12
Hooper v Kirella [1999] FCR 1
Smith v Smith [2004] NSWSC 663
Central Exchange v Anaconda Nickel Ltd [2001] WASC 128
Riley v Jubilee Gold Mines NL [2000] WASC 114
daytraderHQ Ltd v Hometrader Ltd & Ors [2001] WASC 283
M v Australian National University, unreported; IRCt of Australia; BC9603786; 20 August 1996
Baxter v Bendigo Health Care Group (1996) 70 IR 442
MAZZA DCJ:
The application
By originating summons filed 11 October 2005 and amended by order made on 13 February 2006, YD ("the applicant") seeks an order against the Commonwealth of Australia ("the potential party") for pre‑action discovery pursuant to O 26A r 4 of the Rules of the Supreme Court ("RSC"). The applicant seeks pre‑trial discovery of the following documents:
"(i)Documents exempted from release from the Department of Foreign Affairs and Trade's Internal Review as stated in its letter dated 21 October 2004 of the Applicant's Freedom of Information Request;
(ii)[MC's] complete employment records held by the Potential Party or the Department of Foreign Affairs and Trade from 15 July 2001 to current;
(iii)records held by the Conduct and Ethical Unit of the Department of Foreign Affairs and Trade concerning [MC] and his conduct from 15 July 2001 to 21 October 2004;
(iv)all correspondence, memoranda, file notes and any other written or printed material created by [MC] concerning the Applicant to any party;
(v)all correspondence, memoranda, file notes and any other written or printed material created by [MC] concerning the Applicant to any party; and
(vi)All other documents referring or in any way related to any aspect of the dealings between [MC] and the Applicant."
The Court has received in support of the application affidavits from the applicant sworn 6 December 2004 (but not filed until 11 October 2005) and 16 January 2006 and an affidavit from the applicant's husband, GD, sworn 16 January 2006. The potential party has not submitted any affidavit evidence. The affidavit of the applicant dated 16 January 2006 contains four pages of affidavit and 163 pages of annexures. It must to be said that the affidavit is not in a helpful form. In large part, I have been left to discover the factual background of the case for myself.
Background
The factual background against which this application comes to be decided is as follows.
The applicant was born on 27 May 1947 and so, in 2001/2002 she was 54 or 55 years of age. She and her husband, GD, lived in Mandurah. They have a number of adult children including a daughter named G who had been living overseas for some years prior to July 2001. In early 15 July 2001, the applicant and her husband received a telephone call from a doctor in the United Kingdom informing them that G had been seriously injured in a motorcycle accident. The applicant and her husband decided that the applicant should fly to the United Kingdom to be with their daughter and bring her home to Western Australia when she was fit to do so. It seems that some contact was made with the Australian High Commission in London for consular assistance. A consular assistant, MC, was assigned to the case and he met the applicant when she arrived at Heathrow Airport on or about 15 July 2001. MC took the applicant to see her daughter in hospital on 15 July 2001 and then again on 29 July 2001.
After the visit on 29 July 2001 MC accompanied the applicant to her accommodation where, according to the applicant, a consensual act of sexual intercourse occurred. After that and for approximately the next six months, the applicant says she and MC engaged in an ongoing sexual relationship. During the course of that relationship MC allegedly took the applicant with him on consular jail and hospital visits during which she, on occasion, paid for their accommodation. They had numerous social outings to restaurants, cinemas, pubs and at least once, a concert. Some of these outings are said to have occurred during MC's work time. The applicant alleges that she went to Spain for a holiday at the same time and in the same town as MC and his family. The arrangement was allegedly made with MC's knowledge and approval.
The complainant alleges she gave MC gifts and money and that she spent tens of thousands of dollars during the course of the relationship, a significant proportion of which was used to maintain her relationship.
While the applicant and MC were engaged in the relationship, it is said MC continued to provide the applicant with consular assistance. The applicant alleges that she and MC pursued their relationship, on occasions, while purporting to provide the applicant with consular assistance.
It is not entirely clear to me how the alleged relationship ended but MS, another of the applicant's children, telephoned MC's wife and informed her of the relationship with the applicant.
There is material before the court which suggests that the applicant's psychological state deteriorated while she was in the United Kingdom. I cannot determine a reason for this deterioration, but it would seem the applicant was distressed at her daughter's state of health and that in time she regretted her relationship with MC.
It is clear from the affidavit material before me, that the applicant's family, in particular her husband and MS, were outraged by the relationship between the applicant and MC. The applicant herself plainly regrets the relationship and she regards herself as having been emotionally and economically exploited by MC. Further, she alleges that MC abused his office as an Australian consular assistant in persuading her to maintain the relationship and he took advantage of her vulnerable emotional state associated with her injured daughter to pursue her for his own gratification. The applicant does not allege that sexual acts occurred without her consent.
Eventually, the applicant or her husband made a formal complaint to the Department of Foreign Affairs and Trade ("DFAT") about MC's conduct. That complaint was referred to the Conduct and Ethics Unit of the Department and a Mr John Morrison was appointed to conduct the investigation. An investigation was conducted and finalised. In a letter dated 30 January 2003 addressed to the applicant's husband he was told:
"The department has taken action as a result of the investigation, in accordance with departmental policy. Due to confidentiality reasons we are not able to disclose the details of the action that has been taken."
The investigation carried out by the department was into the conduct of MC, not into the conduct of MC's superiors, however, in my opinion it would be inconceivable that Mr Morrison would not have spoken to other employees who had day to day contact with MC. As to this, according to a document produced by Mr Morrison entitled "Allegations against locally engage (sic) staff member: [MC]" at page 133 and 134 of the applicant's affidavit of 16 January 2006, it appears that another employee of the department, Karen Ebudo who had the title of Manager, Consular and Passports, provided "pastoral care" to the applicant over a period of one year. Exactly what that pastoral care involved is not known but conceivably the applicant may have spoken to Ms Ebudo about her relationship with MC. It may be that DFAT had knowledge of MC's relationship with the applicant as a result of Ms Ebudo's discussions with the applicant.
Based on the affidavit material, it appears that MC provided a number of services to the applicant including (a) assisting her to provide emotional and physical support to her injured daughter; (b) advising and assisting her in the process of repatriating her daughter to Australia; (c) assisting her in having her Australian pension paid to her in the United Kingdom and (d) assisting her with emotional support to cope with the personal stress arising from the crisis of having to deal with a seriously injured daughter. In addition, I further note that in November 2001 the applicant cancelled a pension fund that she had in Australia with MLC Ltd. I note that the proceeds of that fund, $52,353.77, were paid to the applicant under cover of a letter dated 27 November 2001. That letter was addressed as follows:
"Mrs [YD]
C/- [MC], Consular Assistant
Passport Office, Aust High Commission
Australia House, StrandLondon WC2B4LA"
It would seem that this money was paid to the applicant via MC in his capacity as a consular assistant. I draw from this that one of MC's duties was to act as a conduit through which monies from Australia were to be paid to the applicant.
Jurisdiction
When this matter first came on for hearing before me, I raised with the parties the issue of whether this Court had jurisdiction to try any action that the applicant wished to bring against the potential party. I raised the issue in light of the fact that whatever happened between the applicant and MC occurred wholly in the United Kingdom. If this Court did not have jurisdiction to adjudicate any dispute between the parties, there would be no power for me to order pre‑action discovery.
Counsel for the potential party, Mr Macliver, dealt with this issue on 13 February 2006. The potential party took no issue with the court having jurisdiction to try any action which the applicant brought against the potential party and referred me to s 56 of the Judiciary Act 1903 (Cth). That section is as follows:
"Suits against the Commonwealth
(1)A person making a claim against the Commonwealth, whether in contract or in tort, may in respect of the claim bring a suit against the Commonwealth:
(a)in the High Court;
(b)if the claim arose in a State or Territory—in the Supreme Court of that State or Territory or in any other court of competent jurisdiction of that State or Territory; or
(c)if the claim did not arise in a State or Territory—in the Supreme Court of any State or Territory or in any other court of competent jurisdiction of any State or Territory.
(2)For the purposes of paragraphs (b) and (c) of the last preceding subsection:
(a)any court exercising jurisdiction at any place in the capital city of a State, or in the principal or only city or town of a Territory, that would be competent to hear the suit if the Commonwealth were, or had at any time been, resident in that city or town, or in a particular area in that city or town, is a court of competent jurisdiction; and
(b)any other court is not a court of competent jurisdiction if its competence to hear the suit would depend upon the place where the Commonwealth resides or carries on business or at any time resided or carried on business."
The potential party conceded for the purposes of s 56(1)(c) of the Judiciary Act that the District Court of Western Australia is a court of competent jurisdiction. That concession was based on the provisions of s 50(1)(a) of the District Court of Western Australia Act 1969 which is in the following terms:
"(1)Subject to section 51 the Court has the same jurisdiction to hear and determine and may exercise all the powers and authority that the Supreme Court has and may exercise from time to time, in relation to —
(a)all personal actions, other than those of the kind referred to in subsection (2) [which in the facts of this case do not apply], where the amount, value or damages sought to be recovered is not more than the jurisdictional limit, whether on the original claim or demand or a balance after allowing payment on account, or the amount of any set off admitted by the plaintiff;"
It seems from the fact that the applicant has brought her case in this Court that she will not be seeking damages in excess of the jurisdictional limit of the District Court which was at the time $250,000. I am satisfied this Court has jurisdiction to try any action brought by the applicant against the potential party.
Order 26A r 4 Rules of the Supreme Court
Order 26A r 4 RSC is in the following terms:
4.Discovery from a potential party
(1)This Rule applies if a person who may have a cause of action against a person whose description has been ascertained ('the potential party') wants —
(a)to commence proceedings against the potential party; or
(b)to take proceedings against the potential party in the course of an action to which the person is a party,
but the person, after reasonable enquiries, has not been able to obtain sufficient information to enable a decision to be made as to whether to commence or take the proceedings.
(2)If there are reasonable grounds for believing that the potential party had, has, or is likely to have had or to have, possession of documents that may assist in making the decision, the person may apply for an order under this Rule.
(3)The application shall be supported by an affidavit and a copy of both shall be served on the potential party.
(4)On the application the Court may order the potential party to give discovery of all documents that are or have been in the potential party's possession and that may assist the applicant in making the decision."
The legal principles which apply to an application for pre‑action discovery are not in dispute and are, I think, well known. Those principles have been fully encapsulated in Hasluck J's decision in Rexha v Curtin University of Technology [2002] WASC 152 between [23] and [29].
Whether pre‑action discovery is granted is a matter of discretion. That discretion can only be enlivened if all the requirements of the rule are complied with. Those requirements are:
(1)The applicant must show that she "may have a cause of action".
(2)She must establish that she wants to commence proceedings against the potential party.
(3)She must establish that reasonable enquiries have been made to obtain sufficient information to enable a decision to be made as to whether to commence proceedings.
(4)Having demonstrated that reasonable enquiries have been made, she must show that she has not been able to obtain sufficient information to enable a decision to be made whether to commence proceedings; and
(5)She must show that there are reasonable grounds for believing the potential party has documents which may assist in making the decision.
See Aquila Resources Ltd & Anor v Pasminco Ltd (Administrators Appointed) & Ors [2002] WASC 53 at [30].
The policy consideration underlying O 26A r 4 RSC is to ensure that a party commences litigation after careful consideration, rather than proceeding in the hope that something might turn up during the discovery process: Rexha v Curtin University of Technology (supra) at [26]. I must bear in mind that the Rule is not directed to judging whether the case that the applicant wishes to bring is strong or weak, rather it is directed to whether the applicant has sufficient information to enable her to decide whether to commence proceedings: Gibson v Australia & New Zealand Banking Group, unreported; SCt of Victoria; BC9102880; 30 August 1991 per Gobbo J. Although I have a wide discretion, I must exercise caution before making an order I should only do so when it is reasonably necessary to achieve the proper administration of justice; Tipperary Developments Pty Ltd v Western Australia (1991) 21 WAR 250 per Parker J at par 24. I am conscious that discovery "constitutes a very serious invasion of privacy and confidentiality [and] the process should not be allowed to place upon a litigant any harsher or more oppressive burden than is strictly required" Harman v Secretary of State for Home Department [1983] 1 AC 280 at 308 per Lord Keith of Kinkel and McCarthy & Ors v Dolpag Pty Ltd [2000] WASCA 106 at [13].
Returning to the five criteria which the applicant must establish in order to justify an order for pre‑action discovery, in light of proper concessions made by the potential party only criteria (1), (4) and (5) are in issue.
Has the applicant shown that she may have a cause of action?
In my opinion, the use of the word "may" in O 26A r 4.1 requires me to be satisfied that there is some reasonable possibility that the applicant has a cause of action against the potential party. Self‑evidently I am not deciding whether the applicant does have a cause of action. I think the evidence must, taken at its highest, allow some reasonable possibility that the applicant has a cause of action and that cause of action should be capable of identification, in general terms. It is not enough for the applicant to assert, without more, the existence of a particular cause of action. There must be some substance to the assertion. It is, I think, a low threshold for the applicant to achieve. I am of course conscious of the fact that the proposed potential party in this application is the Commonwealth of Australia and not MC.
In the applicant's outline of submissions counsel dated 11 November 2005, her counsel expressed the causes of action she may have against the potential party as follows:
"(a)negligence in breaching its duty of care to an Australian citizen seeking consular services overseas;
(b)vicarious liability for the wrongful acts committed by its employee, [MC], the acts of whom may constitute tortious, unconscionable, illegitimate and criminal conduct whilst in the employment of the potential party and acting with the authority of an employee of the potential party."
It can be immediately seen these alleged causes of action are described in the most general terms. Certainly, the applicant alleges that the potential party was negligent but the allegations that the potential party was vicariously liable for acts committed by MC which constitute "tortious, unconscionable, illegitimate and criminal conduct" are without more, just too vague. For example, with respect to alleged criminal conduct, what criminal conduct is being alleged? Some attempt has been made to identify with better precision the applicant's causes of action in the applicant's further outline of submissions filed 24 February 2006. That document at par 13 states:
"The Applicant refers to the tort of misfeasance in public office, as one of the many possible causes of action that may be pursued against the Potential Party and refers to the rationale identified by Nourse LJ in Jones v Swansea County Council [1990] 1 WLR 54 and which was affirmed in Sanders v Snell [2003] FCAFC 150 at paragraph 96: 'The rationale of the tort is that in a legal system based on the rule of law executive or administrative power may be exercised only for the public good' and not for ulterior and improper purposes."
The reference in this paragraph to "one of the many possible causes of action that may be pursued against the Potential Party" is unhelpful because it begs the question of what are the many potential causes of action that may be pursued against the potential party. However, a reading of the applicant's further outline of submissions as a whole reveals that the applicant claims that she has causes of action against the potential party in negligence and for the tort of misfeasance in public office.
I turn first to the tort of negligence. There is sufficient evidence to establish that the applicant sought and was given consular assistance by MC and that he was at all relevant times employed by the potential party. It is clear that the potential party has a duty to provide, through consular staff such as MC, assistance to Australian citizens overseas who are in distress and that it had a duty of care to the applicant.
The exact scope of the duty of care is impossible to define at this stage in the proceedings. It is sufficient for me to say that I am satisfied that the potential party may be obliged to provide an Australian citizen with a wide range of services and advice to a person in the applicant's position including helping her support her injured daughter, ensuring that her daughter is provided with adequate medical treatment, provide the applicant with information and assistance as to the repatriation of her daughter to Australia, and providing the applicant with proper personal support to enable her to cope with the obviously distressing situation of having a daughter badly injured so far from home. If the potential party was obliged to carry out these duties with respect to the applicant it was obliged to do so with reasonable care and in a manner which would not cause her foreseeable harm.
The gravamen of the applicant's complaint against the potential party is that MC, as the potential party's employee, breached its duty of care by carrying on a sexual relationship with her in circumstances where he knew that she was emotionally vulnerable and that such a relationship would be harmful to her and contrary to his obligation to provide her with proper personal support. As a result, it is argued, the potential party's duty of care to the applicant was breached and that the applicant has suffered emotional damage and some financial loss.
Having given the matter considerable thought, I have concluded that the applicant may have a cause of action in negligence against the potential party. Based on the information before me, there may be a number of obstacles in the way of the applicant which prevent her from ultimately succeeding – but it is not for me to judge whether she will ultimately succeed. All that I am required to do at this stage is to judge whether she may have a cause of action. In my opinion if it can be established that part of the potential party's duty of care to the applicant involved its officers providing proper personal support to a person in crisis, it is at least arguable that such a duty is breached if the officer providing the support allows him or herself to become involved in a sexual relationship with the person who is being assisted.
I am satisfied that the applicant may have a cause of action in negligence against the potential party.
As to the applicant's allegation that the potential party may have committed the tort of misfeasance in public office, I am much less certain. The history of this tort is set out in Sanders v Snell (No 2) [2003] FCAFC 150 between [86] and [89]. Although the origins of the tort can be traced back 300 years, its precise limits are still undefined.
In Jones v Swansea City Council [1990] 1 WLR 54 Slade LJ said that the essence of the tort was as follows:
"… someone holding public office has misconducted himself by purporting to exercise powers which were conferred on him not for his personal advantage but for the benefit of the public or a section of the public either with intent to injure another or in the knowledge that he was acting ultra vires."
In Northern Territory of Australia & Ors v Mengel & Ors(1995) 185 CLR 307 it was said in the joint judgment of Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ at p 345 that:
"… the weight of authority here and in the United Kingdom is clearly to the effect that it is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power."
At p 370 Deane J set out the elements of the tort as follows:
(a)an invalid or unauthorised act;
(b) done maliciously;
(c) by a public officer;
(d) in the purported discharge of his or her public duties;
(e) which causes loss or harm to the plaintiff.
To prove malice, the applicant would have to prove an actual intention to cause injury or knowledge on the part of MC that he had no power to behave as he did and that it would probably injure the applicant.
Even acknowledging that the tort of misfeasance in public office is still evolving, the tort is targeted against public officials who exercise power vested in them maliciously. It is difficult to see how, on the evidence before me, that MC's actions were malicious in the sense that Deane J described in Northern Territory v Mengel (supra). However, at this stage, I cannot conclude that an action based on this tort is unsustainable. With some hesitation, I find that the applicant may have a cause of action against the potential party on this ground.
Finally, before I leave the issue of what causes of action the applicant may have, I note pars 20 to 24 of her further outline of submissions dated 24 February 2006. Those paragraphs are as follows:
"20.Equity intervenes in that it will neither allow advantage to be taken of a person labouring under a disability or sanction an overbearing of a vulnerable party's judgment by a stronger party's influence. These forces may be at work even though the person affected becomes a willing participant in the transaction which on its face shows no real sign of unfairness: Smith v Smith [2004] NSWSC 663 at paragraph 59.
21.The Applicant submits that this is what has occurred here, that she was in a vulnerable state when she arrived in the UK and having observed her condition, [MC] took advantage of this, which later led to the Applicant's emotional dependency on him and she became a willing partner.
22.Courts have accepted since Louth v Diprose (1992) 175 CLR 621 that infatuation and emotional dependency may amount to special disadvantage or disability, as affirmed by Gaudron, Gummow and Kirby JJ in Bridgewater v Leahy (1998) 194 CLR 457 at p490.
23.The intervention of equity is not merely to relieve the application from the consequences of her own foolishness but to prevent her victimisation, per Deane J in Louth v Diprose at p638.
24.Therefore, it is submitted that the merits of the Applicant's case should not fall solely upon the appearance or even the fact that the relationship was consensual."
If the applicant is suggesting that she has some equitable cause against the potential party it must be identified. The applicant has not identified any particular equitable cause, right or remedy. The cases referred to by the applicant are cases relating to unconscionable dealings with respect to property transactions. With respect, they do not assist the applicant. There is nothing before me which satisfies me that the applicant may have an equitable cause against the potential party.
To conclude on this point, I am satisfied that the applicant may have a cause of action against the potential party in negligence and perhaps the tort of misfeasance in public office but not on any other basis submitted by the applicant.
Has the applicant shown that she has not been able to obtain sufficient information?
The applicant has resorted to freedom of information inquiries to obtain documents with respect to her potential cause of action. Her solicitors made an initial freedom of information request by a letter dated 6 January 2004 for documents held by the DFAT. On 7 July 2004 the Department released 42 documents in full and exempted 77 documents. A review of the Department's decision to withhold certain documents was requested by a letter from the applicant's solicitors dated 10 September 2004. By a letter dated 21 October 2004 the department reached the decision to release fully 32 of the 77 exempted documents and to partially release 12 documents. The department maintained that the remaining 33 documents were fully exempt. The nature of the 33 fully exempted documents and the 12 partially released documents are set out in the applicant's affidavit of 6 December 2004 and are contained in Annexure YD5.
Much of the documentation which has been released to the applicant by the department is set out in Annexure YD7 of the applicant's affidavit sworn 16 January 2006 between pp 45 and 93 and Annexure YD8 between pp 107 and 168. Generally speaking, this documentation has been previously given to the department by the applicant or those associated with the applicant or are documents which have already been sent to the applicant or those who are assisting the applicant or are internal DFAT communications which are innocuous or have parts obliterated. None of these documents reveal the outcome of the investigation conducted by the Conduct and Ethical Unit of DFAT nor the reasons for any finding made in the course of that investigation. In my opinion a prudent and reasonable person would want to have regard to the findings and reasons of the internal investigation before making a decision to commence proceedings against the potential party. Plainly, such an investigation would have embraced the actions of MC and the existence and breach by MC of any internal rules, guidelines, procedures or codes of behaviour which may apply to those who provide consular assistance. It is also inconceivable that such an investigation would not have undertaken some inquiry as to what other departmental officers knew about MC's conduct and, in particular, what Ms Ebudo knew of MC's conduct.
While the findings of the internal inquiry are not definitive of whether the applicant has a cause of action against the potential party, it is important material which would, in my opinion, enable the applicant to make a decision about whether to commence proceedings against the potential party. Without the findings and reasons of the internal investigation I do not regard the applicant as having sufficient information to enable her to decide whether to commence proceedings against the potential party.
The potential party has submitted that the applicant already has sufficient information to decide whether to commence an action against the potential party. The potential party has asserted that the applicant has from her own knowledge of events and from the documents she has obtained from freedom of information requests enough material to make her decision. I do not agree. A prudent litigant in the position of the applicant should, before commencing proceeding against the potential party, be aware of the existence of the potential party's internal rules, guidelines, procedures and codes of conduct and whether there has been any breach of them. The applicant should also be aware of whether after departmental officers knew of MC's relationship with the applicant. The applicant would not have knowledge of these things and they are not apparent from the documents disclosed to the applicant under freedom of information requests.
Has the potential party documents which may assist in the making of the decision?
Initially, the applicant sought to name the Minister for Foreign Affairs as the potential party. It was at that point highly doubtful that the Minister had any of the documents which the applicant sought. However, since the originating summons was filed it was amended to name the Commonwealth of Australia as the potential party. This amendment was made by consent. There is no dispute that the documents sought by the applicant are in the possession of the potential party. Specifically, there appears to be no doubt that the potential party has the findings and reasons of the investigator who examined the applicant's complaint against MC.
Ruling
I am satisfied that the plaintiff has satisfied all of the criteria required by O 26A r 4 with respect to, at least, the report of the Departments' investigation into MC's conduct. I consider that this documents comes within the ambit of (iii) of the documents sought by the applicant in her amended originating summons.
As to the other documents sought in the summons, I heard no real argument from either counsel. In the circumstances, I am prepared to hear further argument should the applicant wish to pursue discovery of the documents sought in (i), (ii) (v) and (vi) of the originating summons.
I will hear parties further concerning the precise form of the order and costs.
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