Case: WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175
Outcome: cited
In WA Pines Pty Ltd v Bannerman ((1980) 41 FLR 175 at 181-182) Brennan J, with whom Bowen CJ agreed, said: "In the present case, discovery is sought before there is a tittle of evidence to suggest that the [respondent] did not have the requisite cause to believe which par 6 of the statement of claim would put in issue. Some assistance was sought to be derived from cases where discovery had been given to a party before he was required to give particulars of his claim ... but in cases of that kind there is either an anterior relationship between the parties which entitles one to obtain information from the other, or sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery. This is not such a case. This is a case where a bare allegation is made ... and, the paragraph being denied, the applicant seeks to interrogate the [respondent] and ransack his documents in the hope of making a case. That is mere fishing." 41 The Court noted that discovery and production were critical issues in any judicial review proceeding under the ASIO Act. Brennan J said, at 75, that "[i]t would be an unusual case, however, if a plaintiff without discovery against the Director-General could discharge the burden of proving that [ASIO] had engaged in the particular activity of which he complains". He continued, at 76: "discovery would not be given against the Director-General save in a most exceptional case. The secrecy of the work of an intelligence organization which is to counter espionage, sabotage, etc is essential to national security, and the public interest in national security will seldom yield to the public interest in the administration of civil justice ... Nevertheless, the veil of secrecy is not impenetrable, for the public interest in litigation to enforce the limitation of function prescribed by s 17 is never entirely excluded from consideration ... But the veil is not penetrated merely by a plaintiff's deposition that he is not a security risk." 42 Further on, at 76-77, his Honour noted the "large obstacles in the path of a plaintiff" seeking orders against ASIO. These obstacles arise in part because "of the restrictions imposed upon discovery in aid of proving, and upon the admission of evidence in proof of, what is and what is not relevant to security". 43 It is apparent from these passages that what Brennan J had in mind was not merely discovery, but the dual process of discovery and production. His use of the word discovery appears to be a short-hand reference to this dual process. Because the Court in Church of Scientology did not need to decide whether to order discovery, Brennan J's obiter remarks were directed to difficulties generally in bringing review proceedings against ASIO. They were not directed to the important distinction between discovery and the subsequent production of non-privileged discovery documents. Mason J's judgment also refers to the difficulties in bringing this type of claim. He notes, at 61, that: "Crown privilege may exclude from consideration the very material on which the plaintiff hopes to base his argument ... [but the] fact that a successful claim for privilege handicaps one of the parties to litigation is not a reason for saying that the Court cannot or will not exercise its ordinary jurisdiction; it merely means that the Court will arrive at a decision on something less than the entirety of the relevant materials."