Case: Hayes Knight GTO Pty Limited v Australian Securities and Investments Commission [2005] FCA 1509 ; (2005) 147 FCR 468
Outcome: cited
of the imminence of the case it is best that I form and express a view as to this particular discovery application promptly. I will do so without reserving my decision. The power to order discovery in judicial review proceedings is clear. Over the years there has been a plethora of authority dealing with the circumstances under which it ought to be granted. Beyond saying that there is a certain restraint to be observed, in my opinion it is not necessary to encrust a judicial discretion to be exercised as a matter of practice and procedure with all sorts of judge-made rules. Some of the more modern authorities were referred to recently by Siopis J in Hayes Knight GTO Pty Limited v Australian Securities and Investments Commission [2005] FCA 1509 ; (2005) 147 FCR 468 and the comprehensive submissions of the parties have identified a number of other relevant authorities. The issue needs to be focused upon the basis for the judicial review application. In the present case, there are several broad grounds of attack. The first is the natural justice ground and it is said that there should be discovery related to cl 1(a) of the grounds of application. With all respect, I fail to see any basis for discovery in relation to the failure to afford natural justice as alleged. The relevant facts are clear and are within the knowledge of the applicants. The next broad ground is that the Australian Securities and Investments Commission (ASIC) failed to take relevant considerations into account. That involves three steps. One is the existence of the consideration; secondly, is the relevance of the consideration; and, thirdly, there is the failure to take it into account. The disclosure or discovery of the documents which I have indicated I will order should make clear those circumstances or considerations which were not taken into account or, at least, will do all that can be done to establish that proposition. It is tempting to leave any other aspect of the matter until after consideration has been given to those documents. However, it seems to me that when I go through the individual paragraphs which are relied upon, there is no proper basis for discovery on this issue at this point because of two fundamental factors. The first is that the applicants were the subject of the investigation in question and much of what is alleged is within their own personal knowledge. Secondly, they received communications from ASIC which would establish many of the factual matters, in particular, the letter to which attention was drawn yesterday which was exhibit LMS17 dated 23 February 2004. That has been added to this morning by ASIC indicating a number of facts which it is prepared to admit for the purposes of the proceedings. It may be doubtful whether those admissions carry the letter any further, but they certainly do give formality to that situation. I will run through the relevant paragraphs of the application. The first is the fact of ASIC's lengthy prior investigation into the conduct of the deed administrators and the affairs of the company. That seems to me to be clearly within the knowledge of the applicants supplemented by the communications from ASIC. The second is the examination of, amongst others, one of the deed administrators, and the mine manager in connection with that investigation. That again is a matter of which evidence has been given. The third is the fact that ASIC was assisted during its investigations and those examinations by, and reached its conclusions having regard to, both expert accounting evidence and independent legal advice from senior counsel. The source of that is the ASIC communication. The point has been made today that the content of the expert accounting advice and, in particular, the independent legal advice, may be relevant to the case. I do not prejudge that at the moment, but that has not been alleged in terms. It seems to me that if it is desired to persist in an application to inspect that material, then a particular application should be made for that purpose. The fourth, the fact that at the conclusion of the investigation and those examinations ASIC reached the view that the prospects of success were insufficient to justify ASIC commencing litigation against the deed administrator, is again established by the letter and admissions. The fifth, the fact of the dislocation, disruption, and expense already experienced and incurred, etc, is a matter within the knowledge of the applicants. To the extent that particulars 9, 10 and 11 are pressed, it seems to me that they are not matters which call for discovery.