O'Sullivan v Parkin [2008] FCAFC 134 (18 July 2008)

PRACTICE AND PROCEDURE – Discovery – "Fishing" – What constitutes – Whether evidence supporting cause of action necessary – Whether joined issue defined by pleadings sufficient – Significance of nature of challenge to administrative decision.

PRACTICE AND PROCEDURE – Discovery – Proceeding related to matters of national security – Whether different approach to discovery required – Balance of national interest with public interest in administration of civil justice – Distinction between discovery and inspection – Whether interests of national security more appropriately taken into account at point of inspection.

Australian Security Intelligence Organisation Act 1979 (Cth)
Evidence Act 1995 (Cth)
Judiciary Act 1903 (Cth)

Adam P. Brown Male Fashions Pty Ltd v Phillip Morris [1981] HCA 39; (1981) 148 CLR 170
Australian Securities Commission v Somerville (1994) 51 FCR 38
Carmody v MacKellar (1996) 68 FCR 265
Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25
House v R [1936] HCA 40; (1936) 55 CLR 499
Jilani v Wilhelm [2005] FCAFC 269; (2005) 148 FCR 255
Leghaei v Director-General of Security [2007] FCAFC 37
Lloyd v Costigan (No 2) (1983) 82 FLR 104
Minister for Immigration and Multicultural and Indigenous Affairs v Wong [2002] FCAFC 327
R v Lewes Justices; ex parte Home Secretary [1973] AC 388
Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp [1997] FCA 578
WA Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 41 FLR 175

PAUL O'SULLIVAN SUED IN HIS CAPACITY AS DIRECTOR-GENERAL OF SECURITY v THOMAS SCOTT PARKIN, MOHAMMED YUSSEF SAGAR AND MUHAMMAD FAISAL
VID 1157 OF 2007

RYAN, NORTH & JESSUP JJ
18 JULY 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1157 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	PAUL O'SULLIVAN SUED IN HIS CAPACITY AS DIRECTOR-GENERAL OF SECURITY Appellant
AND:	THOMAS SCOTT PARKIN First Respondent MOHAMMED YUSSEF SAGAR Second Respondent MUHAMMAD FAISAL Third Respondent

JUDGES:	RYAN, NORTH & JESSUP JJ
DATE OF ORDER:	18 JULY 2008
WHERE MADE:	MELBOURNE

1. The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1157 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	PAUL O'SULLIVAN SUED IN HIS CAPACITY AS DIRECTOR-GENERAL OF SECURITY Appellant
AND:	THOMAS SCOTT PARKIN First Respondent MOHAMMED YUSSEF SAGAR Second Respondent MUHAMMAD FAISAL Third Respondent

JUDGES:	RYAN, NORTH & JESSUP JJ
DATE:	18 JULY 2008
PLACE:	MELBOURNE

1 The appellant appeals by leave from orders made by a single Judge of the court on 2 November 2007. Those orders, which were made in two proceedings being heard together before his Honour, required the appellant to make discovery of specified documents or categories of documents. The appellant contends that his Honour was in error to have imposed those, or any, discovery obligations upon him.

2 The appellant is the Director-General of Security, a position established by s 7 of the Australian Security Intelligence Organisation Act 1979 (Cth) ("the ASIO Act"). By s 8(1) of the ASIO Act, the Australian Security Intelligence Organisation ("ASIO") is under the control of the appellant. By s 17(1)(c) of the ASIO Act, it is a function of ASIO "to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities". By s 37(1) of the ASIO Act, the functions referred to in s 17(1)(c) include "the furnishing to Commonwealth agencies of security assessments relevant to their functions and responsibilities". The proceedings before the primary Judge concerned security assessments made by ASIO, and furnished to the Minister for Immigration, Multicultural and Indigenous Affairs ("the Minister"), in relation to the respondents. In those proceedings, the respondents allege that the assessments were not made in accordance with law, and should be quashed.

3 The first of the two proceedings before the primary Judge concerns Thomas Scott Parkin, a citizen of the United States of America who entered Australia in June 2005 pursuant to a tourist visa that permitted him to remain for six months. Before the expiration of that period, ASIO issued a security assessment which was adverse to Mr Parkin, and provided that assessment to the Minister. The assessment contained a recommendation that Mr Parkin’s visa be cancelled pursuant to s 116 of the Migration Act 1958 (Cth) ("the Migration Act"), and that was done on 10 September 2005. On 17 September 2005, Mr Parkin was removed from Australia and returned to the United States.

4 The second of the proceedings before the primary Judge concerns Mohammed Yussef Sagar and Muhammad Faisal, each a citizen of Iraq who had been, since about September 2002, held in Australian immigration detention in the Republic of Nauru. In about September 2005, it was determined by the Department of Immigration, Multicultural and Indigenous Affairs ("the Department of Immigration") that Mr Sagar and Mr Faisal were entitled to be recognised as refugees in accordance with the Convention Relating to the Status of Refugees ("the Refugees Convention"). Subsequently, however, ASIO issued a security assessment in relation to each of them which was adverse. In each case the assessment was provided to the Department of Immigration, and as a result the Department refused to grant a visa to Mr Sagar or to Mr Faisal.

5 Mr Parkin’s proceeding was commenced in December 2005. That of Messrs Sagar and Faisal was commenced in February 2006. In each case the court’s jurisdiction under s 39B of the Judiciary Act 1903 (Cth) was invoked. Orders in the nature of certiorari and declarations were sought. Each application was supported by a statement of claim and, by the time the primary Judge had given judgment in relation to the matter which has led to the present appeal, the appellant had filed his defence in each proceeding. As things have transpired, the parties’ pleadings have assumed importance, and it will be necessary to refer to them in some detail.

6 Mr Parkin alleged that "there was nothing in ASIO’s holdings, or records available from other authorities, which would have justified refusal" of his request for the tourist visa which he was granted in May 2005. The appellant admitted that allegation. Mr Parkin alleged the making of the adverse security assessment described above, and that was also admitted. Mr Parkin then alleged that, in making the assessment, the appellant had relied solely on activities attributed to him after his arrival in Australia, and, further, that, following his entry into Australia, he "did not engage in any activities which warranted the preparation or approval by the [appellant] of the adverse security assessment". The appellant denied these allegations. After a series of allegations with respect to the involvement of the Department of Immigration, Mr Parkin alleged that, in preparing or approving the assessment, the appellant "acted beyond jurisdiction" because no facts existed "which would justify an adverse assessment" of Mr Parkin; because the appellant had taken account of irrelevant matters, "namely supposed facts which were not facts"; because the appellant had failed to take account of relevant matters, "namely the true facts of and concerning [Mr Parkin’s] activities following his entry into Australia"; and in a number of other specified respects. Mr Parkin alleged that the appellant had failed to discharge his obligations under the ASIO Act by not ensuring that the adverse security assessment was made in conformity with the rights conferred on him by s 17A of that Act. Finally, he alleged that the appellant was not authorised to make, to approve, or to provide to the Department of Immigration the adverse security assessment and that the assessment was "void and of no effect". Mr Parkin’s allegations of want of jurisdiction and of unauthorised conduct on the part of the appellant were substantially denied in the appellant’s defence.

7 Messrs Sagar and Faisal alleged that, in about September 2005, the Department of Immigration determined that they were entitled to be recognised as refugees within the meaning of the Refugees Convention, an allegation to which the appellant did not plead. They alleged that, at a time, or at times, unknown to them, the appellant had prepared or approved security assessments which were adverse, allegations which were substantially admitted by the appellant. After a series of allegations concerning the involvement of the Department of Immigration, Messrs Sagar and Faisal alleged that, in making the security assessments, the appellant "acted beyond jurisdiction" in respects similar to those referred to above in the case of Mr Parkin. Like him, they also alleged that the appellant had made the adverse security assessments without authority. These allegations also were substantially denied by the appellant. Unlike Mr Parkin, Messrs Sagar and Faisal did not allege, independently of their allegation of excess of jurisdiction, that they had not engaged in activities which warranted the preparation or approval of the adverse security assessments.

8 In the course of the interlocutory stages of the proceedings before the primary Judge, the question arose whether the respondents (by which term we refer to Messrs Parkin, Sagar and Faisal collectively) were entitled to discovery. His Honour ordered that the parties make submissions on the question, and they did so. It is not clear whether the discovery issue was dealt with according to a specific provision of O 15 of the Federal Court Rules. Counsel for the respondents told us on appeal that his clients had sought orders for discovery. As events transpired, the primary Judge made such an order. That order might have been made under O 15 r 5; or, because of its specific terms, it might have been made under O 15 r 8. For present purposes, nothing turns on these distinctions.

9 The primary Judge noted that discovery was discretionary, and that, pursuant to O 15 r 15, the court would not make an order for discovery "unless satisfied that the order is necessary at the time when the order is made". His Honour adverted also to Practice Note 14.

10 The primary Judge then turned to the two main categories of objection which the appellant raised to the making of discovery orders. The first objection was, in the words of his Honour,

... that the ASIO Act does not intend that a person in the position of the applicants should have access to his or her security assessment and that for the Court to order discovery of the security assessment would be to circumvent this intention.

His Honour considered the provisions of Div 2 of Pt IV of the ASIO Act, to which provisions we shall refer further below. His Honour’s conclusion was:

Division 2 of Part IV of the ASIO Act is only concerned with the provision of a security assessment to the subject of the assessment. In addition, nothing within that Division or elsewhere in the Act prohibits the provision of an assessment to its subject. Even where the Attorney-General certifies that withholding a security assessment is essential to the security of the nation, sub-s 38(4) merely provides that this "does not require a notice to be given in relation to a security assessment". And if the Attorney-General certifies that disclosing the statement of grounds would be prejudicial to the interests of security, sub-s 38(5) provides that the assessment must still be provided, but without the certified material. It may be true to say that there is a legislative intention not to provide the non-citizen subject of an adverse security assessment with a copy of that assessment, but it goes too far to imply into the ASIO Act an intention not to allow discovery of such a document if the justice of the case otherwise requires it. Two points need to be made in this regard. First, discovery is not the same thing as production. It may be that a litigant is entitled to know what documents exist that are relevant to a dispute, even if he or she cannot compel production of those documents. Secondly, production may not be to the litigant himself or herself. A court may place confidentiality orders on the production of the discovered material, which may exclude the litigant from access to them. On these matters, the ASIO Act is silent.

The primary Judge therefore rejected the submission that discovery could circumvent the ASIO Act "and therefore constitute an abuse of process".

11 The appellant’s second objection was that, in seeking discovery, the respondents were on a fishing expedition, in the sense that, as matters then stood and without access to the documents sought to be discovered, they had no way of knowing whether they had an actual, as opposed to a speculative, case against the appellant. His Honour expressed his conclusion on this objection in the following terms:

In a sense, the present application is a fishing expedition, and as much is admitted by the applicants. But I do not think it is an impermissible fishing expedition. The purpose of the discovery that is sought is not for the applicants to determine if they have a case. If the applicants are right that they have no idea why the adverse security assessments have been made, then it follows that they must have a case that is at least arguable. Their case is that, because they have done nothing to constitute a threat to national security, any finding that they are such a threat must have been made in error. The purpose of discovery is to determine the nature of that error, not whether it exists. The classes of document sought are not overly broad and can be stated simply. The existence of the security assessments is admitted and the existence of documents supporting them can be readily inferred. The ‘fishing’ allegation does not dissuade me from ordering discovery.

12 The primary Judge then turned to consider the distinction between discovery and inspection, and he did so in two respects. First, his Honour noted that, if he were satisfied that under no circumstances could the respondents compel production of the documents which they sought, he would be inclined not to order discovery upon the grounds that it would be futile. His Honour took the view that to reach such an opinion before the documents in question had been discovered would require a very high threshold of satisfaction on the point. His Honour likened the process to one in which claims for privilege were made after a party’s discoverable documents were listed, with claims to resist inspection being made in the conventional way. Secondly, his Honour referred to the observations of Brennan and Mason JJ in Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25, to which we refer below, and opined that, when their Honours (particularly Brennan J) referred to the exceptional nature of discovery in national security situations, and to the difficulties that that might place in the way of a plaintiff who needed access to documents in order to complete the proof of his or her case, they were most likely referring to inspection rather than discovery.

13 In the circumstances, the primary Judge held that he should exercise his discretion in favour of ordering discovery, saying of the respondents:

They should not be shut out just because their claim involves the denial of a state of affairs they cannot explain, as opposed to a positive averment.

His Honour ordered that the appellant make discovery of specified documents, or categories of documents. In each case, the documents required to be discovered included the adverse security assessment. They included also any other document relied upon by the appellant in making the adverse security assessment and any other document upon which the appellant intended to rely at trial.

14 Before turning to the nature of the appellant’s case on appeal, we should make three preliminary observations. First, the proceedings before his Honour are being conducted on pleadings. Although the appellant declined to plead to a number of the respondents’ allegations (upon the ground that they were not allegations against him), in other respects he pleaded to them in the conventional way. Secondly, for present purposes we must assume that the respondents have jurisprudentially legitimate causes of action of the kind identified in their applications, and developed further by the allegations in their statements of claim. Of particular relevance are the respondents’ allegations that the adverse security assessments were made "beyond jurisdiction" because no facts existed which would justify them. Significantly to the matter of discovery, the respondents have built their case around the proposition that the absence of facts which would justify the adverse security assessments made by the appellant is both justiciable in this court and, if made good, productive of the conclusion that the appellant acted beyond jurisdiction. It seems to us that the primary Judge was obliged to take the structure of the respondents’ case at face value in these respects and, as a result, his Honour was faced with a fairly conventional situation in which the respondents had a legitimate concern to make good their case by the proof of facts (or, as here, by the proof of the absence of facts) and desired to know what documents were in the possession, custody or power of their adversary with respect to the factual questions which would arise. Thirdly, the judgment under appeal involved (indeed, depended upon) the exercise of a judicial discretion. As the appellant recognised, such a discretionary judgment will be upset only in a clear case of error of the kind referred to in House v R [1936] HCA 40; (1936) 55 CLR 499, 504-505. Nor was this a case of a discretionary judgment which affected the substantive outcome of the proceedings below. His Honour’s judgment was, perhaps classically, given on a question of practice and procedure, in which arena it is well-established that appellate courts will exercise particular caution: Adam P. Brown Male Fashions Pty Ltd v Phillip Morris [1981] HCA 39; (1981) 148 CLR 170, 177.

15 In his case on appeal, the appellant identified three categories of error in the reasons of the primary Judge. First, it was said that the respondents were on "a fishing expedition" in the sense that they were searching for documents the production of which would give them a case, where presently they had none. It was submitted that the primary Judge erred in granting discovery where the respondents’ case consisted of nothing more than allegations, unsupported by known or legitimately inferred facts. Secondly, it was said that there is a principle that, where the national security is involved, discovery should be ordered only in an exceptional case. His Honour erred, it was submitted, in not giving effect to that principle. Thirdly, according to the appellant, his Honour misapprehended the significance of the statutory regime created by the ASIO Act governing the provision of security assessments to the persons to whom they relate. Particularly, it was submitted that his Honour misunderstood the nature of the appellant’s case in this respect, as was apparent from his rejection of the proposition that, by reason of the provisions of the ASIO Act, the respondents’ attempts to obtain discovery were an abuse of process. The appellant claimed that he never put his case that high, and that, in proceeding the way he had, his Honour was deflected from what was the appellant’s point, namely, that the provisions of the ASIO Act contemplated that the subject of a security assessment would not be permitted to see the assessment, and that circumstance ought to have been weighed in the exercise of his Honour’s discretion, rather than treated as though the question were one of abuse of process.

16 The "fishing" objection raised by the appellant before the primary Judge relied upon the following passage in the judgment of Brennan J (which attracted the support of Bowen CJ) in WA Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 41 FLR 175, 181-182:

Though the power to require discovery be acknowledged, how should it be exercised? It depends upon the nature of the case and the stage of the proceedings at which the discovery is sought. In the present case, discovery is sought before there is a tittle of evidence to suggest that the Chairman 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 by par 6 of the statement of claim and, the paragraph being denied, the applicant seeks to interrogate the Chairman and ransack his documents in the hope of making a case. That is mere fishing. As Smithers J said in Melbourne Home of Ford Pty Ltd v Trade Practices Commission ...: "In the absence of such evidence the proceeding is essentially speculative in nature. In such circumstances for the court to assist the applicants by making available to them the processes of interrogatories and discovery would be to assist them in an essentially fishing exercise and from this the court on established principles should refrain."

In cases decided by the Full Court since WA Pines, this passage from the judgment of Brennan J has uniformly been accepted as stating the correct approach where discovery is sought by an applicant in judicial review proceedings. However, as some of those cases, referred to below, demonstrate, Brennan J’s words have had the capacity to provide support for a range of outcomes.

17 In Australian Securities Commission v Somerville (1994) 51 FCR 38, the appellant Commissioner submitted (amongst other things) that –

(51 FCR at 53) The Full Court held (at 54) that the authorities did not support "the wide general proposition advanced by the appellant". Their Honours continued (at 54):

Whether it is appropriate to order discovery will depend upon the nature of the case and the stage of the proceedings at which discovery is sought: WA Pines per Brennan J at 181.

In any event, it is clear from the passage of his judgment in WA Pines set out earlier in these reasons that Brennan J contemplated that there might be cases in which discovery could properly be ordered, even before particulars of a claim had been given, where sufficient had been 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" (at 181).

18 In Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp [1997] FCA 578, the Full Court treated the requirement, extracted from the judgment of Brennan J, that "sufficient [be] 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" as "[a] modern statement of the principle". Having referred to other judgments, including Somerville, their Honours said:

Where, in a case properly before the Court, a case that cannot be dismissed as an abuse of process, the pleadings raise an issue for decision to which a party's documents may be relevant, the Court will have a discretion to order discovery. The need to establish a basis for the suspicion described by Brennan J in W.A. Pines will generally be confined to the kind of case to which he was adverting. In the normal case, the pleadings will adequately ground the order.

The kind of case to which Brennan J was adverting was, we infer, one which was "essentially speculative in nature".

19 In Minister for Immigration and Multicultural and Indigenous Affairs v Wong [2002] FCAFC 327, the Full Court said (at [30]) that the passage from WA Pines encapsulated what had "usually been adopted as the appropriate test in determining whether discovery should be granted in matters of judicial review". Referring to Canwest, their Honours in Wong said (at [34]):

However, their Honours noted that the pleadings in Canwest and other material before the Court provided grounds for an inference sufficient to satisfy the test stated by Brennan J in WA Pines. In other words, the case was not one where a mere allegation, without a "tittle of evidence", was all that could be relied upon.

... a mere allegation, in the absence of something more, would not suffice to require discovery and it may be said here interrogatories. In fact the case concerned both interrogatories and discovery and did not suggest any difference in principle between the two. What that something more is will depend on the particular circumstances of the case. In some cases (the present is not one) there may be evidence upon which it is open to conclude that the matter into which enquiry is sought may be made out so that discovery or interrogatories may be appropriate. In other cases it may be possible by reference to known facts to draw inferences which then found a suspicion. But mere suspicion not "grounded" on evidence or inference will not suffice.

In Wong itself, the allegation was that a Minister had exercised a power for an ulterior purpose. The Full Court held that there was not a tittle of evidence to support that allegation: the case rested on a "bare" allegation. Thus the primary Judge’s order directing the Minister to answer interrogatories was set aside.

20 In Jilani v Wilhelm [2005] FCAFC 269; (2005) 148 FCR 255, 273, the Full Court endorsed the following "principles upon which discovery is ordered in judicial review applications" as stated by Merkel J in Carmody v MacKellar (1996) 68 FCR 265, 280:

The following principles may now be taken to be well established by the decisions of the Court in Melbourne Home of Ford v Trade Practices Commission [1979] FCA 15; (1979) 36 FLR 450, W.A. Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 41 FLR 175 and Australian Securities Commission v Somerville (1994) 51 FCR 38:

The Full Court referred to other authorities, and concluded that the effect of them was that it was "not open to an applicant to make a bare allegation that a decision was made without any basis and then use the process of discovery to find out if the allegation has foundation." (148 FCR at 273). Their Honours continued (at 273-274):

There must be sufficient definition of the issues to enable the Court to see that the documents sought on discovery relate to a live issue; there must at least be something from which the Court can see that there is a real issue the proof of which would be assisted by discovery ....

The appellant’s case on the present appeal is that it is clear that, when their Honours referred to "a live issue", they intended a reference not merely to an allegation which had been denied, but to an issue in support of which there was at least some evidence, or in relation to which some inference favourable to the applicant might be drawn from the nature of the case, the pleadings or otherwise.

21 Counsel for the respondents in the present case submitted that their clients had made allegations of fact in their statements of claim, that issue had been joined by the appellant in each case, and, therefore, that there was a legitimate and conventional dispute, defined by the pleadings, which would normally give rise to at least a presumptive entitlement to discovery in civil litigation. Counsel for the appellant, however, submitted that the mere existence of pleadings was not sufficient to take the case out of the "bare allegation" category to which Brennan J referred. Indeed, he submitted, the very statement of claim in each case was where the bare allegation was to be found. He pointed out that, save for the formal certificate required by the Rules of Court (or a solicitor’s affidavit to equivalent effect), the respondents had put nothing before the primary Judge which would qualify as even a "tittle of evidence" in the context of the principle to which Brennan J referred.

22 Counsel for the respondents also pointed out that this was not a conventional administrative law case in which their clients’ allegations concerned the state of mind of the decision-maker. Rather, in what is at least a significant aspect of their cases, the respondents allege the absence of facts, the result of which, they say, is that the adverse security assessments could not have been made, whatever the state of mind of the appellant. Further, the respondents’ allegations reflected their own states of knowledge about circumstances directly involving them. The allegations could not, therefore, be dismissed as speculative. It is because of these aspects of the respondents’ cases that their counsel submitted that Wong and Jilani were to be distinguished. The submission raises important questions, both as to what was decided in those authorities and as to the nature of the allegations made by the respondents in the proceedings under appeal here.

23 Wong concerned a Minister’s decision not to revoke an earlier decision under the Migration Act to refuse, on character grounds, to grant a visa. The earlier decision had been made under s 501(3) of that Act, which provided:

(d) the Minister is satisfied that the refusal or cancellation is in the national interest.

The elements of the "character test" were set out in s 501(6). By s 501C, having made a decision to refuse to grant a visa under s 501(3), the Minister was obliged to notify the applicant thereof, to provide certain information which had been relevant to the decision and to invite the applicant to make representations about revocation of the decision. By s 501C(4) –

(b) the person satisfies the Minister that the person passes the character test (as defined by section 501).

In Wong, the Minister declined to exercise that discretion in favour of the applicant who then commenced proceedings under s 39B of the Judiciary Act 1903 (Cth) seeking mandamus, prohibition or an injunction in relation to the Minister’s decision under s 501C(4) of the Migration Act.

24 It seems that the allegation in support of which the claim to administer interrogatories was made was that the Minister had exercised the relevant power for an ulterior purpose; or, as it was put in different parts of the reasons of the Full Court, that the Minister had taken extraneous factors into account. Their Honours noted (at [42]) that –

[u]ltimately counsel for Mr Wong was forced to concede that the application to administer interrogatories rested entirely upon the allegation of ulterior purpose which the applicant made and had, otherwise, no foundation.

The purpose which, according to the speculations of the applicant in Wong, lay behind the Minister’s decision was the return of the applicant to China so that he might be detained or interrogated by the authorities there. It was clear, however, not only that there was no evidence before the court from which any such purpose might be inferred, but also that the applicant had no present knowledge of, and was in no position to lead, any such evidence. The applicant was in the position of a litigant alleging a positive state of affairs – the Minister’s purpose – but lacking any evidence, or anything from which even an inference might be drawn, which would support his allegation. Further, the applicant was not like a litigant who, having been the victim of some palpably irregular event (such as the failure of a motor vehicle to stop at a red light) is able to call for discovery (eg the maintenance records for the vehicle) without, at the time, having any existing knowledge about the critical facts (the state of the vehicle’s braking systems at the time). The applicant was the object of the exercise of a ministerial discretion which was, ex facie, quite regular. To describe his allegations as speculative meant more than to observe that there was, then, no evidence before the court in support of them: it meant that the allegations related to a fact as to which the applicant could, in the nature of things, have no knowledge (absent the answers to the interrogatories which he sought).

25 Jilani concerned a challenge (under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act")) to a decision by a member of the Australian Federal Police to apply for a search warrant. The power to issue the warrant (which was exercised by a Magistrate in the facts of the case) was given by s 3E(1) of the Crimes Act 1914 (Cth) as follows:

An issuing officer may issue a warrant to search premises if the officer is satisfied by information on oath that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.

It was alleged that the person who had sworn the information in support of the application for the search warrant had not been authorised to do so, that the decision was based on irrelevant considerations, that the warrant had been sought for improper purposes, that the decision was made at the behest of another person and that there had been "an abuse of power" (148 FCR at 262-263). The case did not involve only the question of discovery: the Full Court also upheld appeals from orders made by the primary Judge allowing amendments to the applicants’ grounds which related to the allegations of want of authority, of recourse to irrelevant considerations and of improper purpose. In each respect their Honours did so, in effect, because the applicants had no evidentiary or other legitimate basis for making these allegations. As to the matter of purpose, for example, their Honours said (148 FCR at 269-270 [78]-[79]):

The difficulty with this allegation is that the applicants are unable to state what they contend to be the improper purpose of the relevant persons.

[Counsel] for the applicants, frankly conceded before us in argument that he is not in a position to say what the improper purpose is. Nevertheless, he asserted that there is a statutory purpose for which the power may be used and that it is arguable that it was not used for that purpose. In putting the submission he conceded that he could not say what particular purpose was in the mind of the person who requested the assistance of the AFP.

Their Honours also rejected the "logic" which underlay the applicants’ "unparticularised allegation of improper purpose". The Full Court in Jilani carried this approach into its consideration of the applicants’ claim for discovery. Their Honours referred to a passage in Lloyd v Costigan (No 2) (1983) 82 FLR 104, 113 which can apply more widely than to discovery alone:

There is much to be said for the view that it is not open to a party simply to allege that a decision was made without basis and then to seek to use the process of the court to attempt to make out a case and indeed to find out if his allegation has any foundation ....

This reference immediately preceded the passages to which we have referred in [20] above. Their Honours held that the applicants had made "bare allegations" only and should be refused discovery.

26 The decision challenged in Wong was made pursuant to a discretionary statutory power, expressed in the conventional terms "...the Minister may ...". The decision of the police officer challenged in Jilani was not made pursuant to a statutory power at all: the statutory power resided in the Magistrate who issued the warrant. But the decision – and the conduct – so challenged was nonetheless one which involved an element of discretion and was treated as susceptible to challenge under the ADJR Act. What the two cases have in common is that the challenge in each was based upon circumstances which went, inherently, to the making of the decision – to authority, purposes, what was and was not taken into account and the like. Absent any evidence – or even suggestion – that either decision was tainted as alleged, the Full Court in each case readily concluded that it came within the category of cases identified by Brennan J in WA Pines in which discovery (or interrogatories) would not be ordered.

27 By contrast, at least in a significant aspect of the way he put his case here, Mr Parkin’s allegations related not to the state of mind of, or to any particular circumstances inherent in the situation of, the appellant. As noted above, Mr Parkin alleged that he had not, in point of fact, engaged in any activities which could have warranted the preparation or approval of the adverse security assessments in his case. Although the form of this allegation may be less than ideal, no point presently arises about that matter. The appellant denied the allegation directly and, we presume, without embarrassment. That being so, we must treat that allegation as one of an objective fact of which Mr Parkin was claiming to have direct knowledge. As such, the allegation is qualitatively different from those considered by the Full Court in each of Wong and Jilani. The present is not a case in which Mr Parkin makes an allegation which goes to a matter necessarily outside his personal knowledge and is, for that reason, properly to be described as speculative.

28 As noted above, the position of Messrs Sagar and Faisal is somewhat different. They do not make a clear, objective, allegation of the kind made by Mr Parkin. They do, however, allege (as does Mr Parkin) that the security assessments were made beyond jurisdiction because "no facts existed which would justify" them. This is not merely an allegation as to the appellant’s state of mind, or as to some circumstance going inherently to the making of the decision in the situation of the appellant. It is an allegation of objective fact and, no less than the allegation made by Mr Parkin, is qualitatively different from those with which the Full Court was concerned in Wong and Jilani. As with that by Mr Parkin, the allegation made by Messrs Sagar and Faisal was directly denied, without any evident embarrassment.

29 We take the view that, properly understood, the line of authority which commenced with the observations of Brennan J in WA Pines, and which has carried through into Wong and Jilani, is concerned with that category of proceedings for judicial review in which the purpose, state of mind or some aspect inherent in the decision-making process is under challenge. We would not apply it to a case in which an administrative decision is attacked for an alleged objective absence of some fact or circumstance essential to the regular exercise of the power in question. Particularly where the absence of the fact or circumstance is necessarily within the knowledge of the person making the attack, and is unobjectionably pleaded by that person, the court’s approach to discovery, we consider, should be no different from that which would be adopted in factual litigation generally. Such a pleading should not, merely because the allegation is denied and, at the time when the question arises, no relevant evidence has been led, be regarded as speculative in the context of the jurisprudence to which we have referred.

30 That brings us back to the legislative framework within which the appellant operated in the present case. The ASIO Act gave to the appellant functions rather than powers. Nonetheless, he had those functions ex officio and, as pointed out by the High Court in Church of Scientology, the statute gave him the capacity, and the responsibility, to do things not available to be done by an ordinary member of the community. As the pleadings stand in the present cases, the respondents say that, absent the objective facts upon which the appellant may be presumed to have relied, he had no authority to act in the way that he did. In the circumstances, we accept the submission made on behalf of the respondents that, relevantly for present purposes, the present proceedings ought not to be regarded as in the same category as those in WA Pines and the other like cases to which we have referred. For these reasons, we would reject the appellant’s contention that his Honour erred in not regarding the respondents as engaged in fishing.

31 The appellant’s second ground was based upon a passage in the judgment of Brennan J in the Church of Scientology. In that case, the Church of Scientology sued the Director-General of ASIO in the original jurisdiction of the High Court. Allegations were made in its statement of claim generally to the effect that ASIO was embarking upon an investigation for which it had no authority. ASIO applied to have the statement of claim struck out as failing to disclose a reasonable cause of action. Although it succeeded at first instance, on appeal ASIO failed in that endeavour. The essence of the separate concurring judgments of the majority (Mason, Murphy and Brennan JJ) was that, however difficult it might be to establish that the Director-General and his staff had exceeded their authority under the ASIO Act, that was a subject which was justiciable in the courts and the statement of claim contained factual allegations which should not be struck out.

32 In the course of their judgments in Church of Scientology, Mason and Brennan JJ adverted to the difficulty which a plaintiff, such as the Church, would face in adducing evidence sufficient to sustain the proposition that ASIO, a body whose relevant functions were investigative, lacked the authority to embark upon such a course. Of particular relevance in the present circumstances is the following passage from the judgment of Brennan J, upon which the appellant relied (154 CLR at 76):

Yet 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 (Reg. v Lewes Justices; Ex parte Home Secretary [1973] A.C. 388, at p. 407). Indeed, even if the plaintiff were in possession of evidence relevant to the activities of the Organization and the matters in respect of which those activities were being pursued, the evidence might be inadmissible. In D. v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] A.C. 171 at p. 233, Lord Simon of Glaisdale observed:

Nevertheless, the veil of secrecy is not absolutely impenetrable, for the public interest in litigation to enforce the limitation of function prescribed by s. 17 is never entirely excluded from consideration (Sankey v Whitlam [1978] HCA 43; (1978) 142 C.L.R. 1). But the veil is not penetrated merely by a plaintiff's deposition that he is not a security risk. That, after all, may be the very matter which is under investigation. Nor is the veil penetrated by showing that initial investigation has failed to reveal that he is a security risk, for one who turns out to be a security risk will often be found to have some depth of cover.

Counsel for the appellant submitted also that this passage, although extracted from the reasons of one only of the members of the court in Church of Scientology, attracted the approval of the Full Court of this court in Leghaei v Director-General of Security [2007] FCAFC 37, [52]. To the extent, however, that the judgment of Brennan J might be thought to provide support for a general proposition as to the availability of discovery against ASIO, we do not consider that Leghaei takes the matter any further.

33 In the present case, the primary Judge adverted to the judgment of Brennan J in Church of Scientology, and said:

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.

Counsel for the appellant argued that there was no warrant for regarding Brennan J as having had "the dual process of discovery and production" in mind.

34 Although the authority referred to by Brennan J, R v Lewes Justices; ex parte Home Secretary [1973] AC 388, makes it clear that an objection to the production of a document upon the ground that it would be contrary to the public interest is not correctly described as "Crown privilege", or as privilege of any kind, as a matter of practice, objections of this kind tend to be taken in affidavits of documents, sworn pursuant to obligations to give discovery. That is to say, as we understand it, the practice generally is that discovery of the document in question is given, and an objection to production is taken on public interest grounds. Under the Federal Court Rules, the deponent of such an affidavit is obliged to identify the documents with respect to which a claim of privilege is made, and to state the grounds of the claim: O 15 r 6(4). A document in relation to which such a claim is made will not, over the objection of the party giving discovery, fall into the hands of any other party save by order for production under O 15 r 11 or a direction of the court under O 15 r 13(2). In either case, O 15 r 14 entitles the court to inspect the document "for the purpose of deciding the validity of the claim or objection". Indeed, that rule applies specifically (not only to claims of privilege but) to objections to production on any other ground. Order 33 r 11(1) is also relevant in this regard, although operative at trial, rather than at the pre-trial stage. Like O 15 r 14, O 33 r 11 applies not only to claims of privilege as such but also to objections of the kind which might be taken under Part 3.10 of the Evidence Act 1995 (Cth), including public interest objections arising under s 130 of that Act.

35 As a general proposition, therefore, the structure of the Rules of this court contemplates that the status, or potential status, of a document as one whose production would be contrary to the public interest will arise for determination before production, rather than before the giving of discovery. We refer to this as a general proposition because we recognise the reality that, in some, and perhaps many, cases, the identification of a document with the kind of specificity that is normally required for discovery may itself be contrary to the public interest. If so, or if such a claim is made, we think it is consistent with the Rules of Court to which we have referred for the extent of the relevant party’s obligation to specify the document to be ruled upon by the docket Judge after the reading of such affidavit or affidavits, and possibly also after such perusal of the document itself, as he or she thinks fit, in the exercise of his or her discretion. In the way the matter was dealt with by the primary Judge in the present case, we can discern nothing to indicate any reluctance by his Honour to adopt such a pragmatic approach, should sufficient cause be shown.

36 We agree with the primary Judge that Brennan J, in adumbrating the general principles which he did in Church of Scientology, was not concerned to make any distinction between discovery and production. Those observations, as his Honour below in the present case pointed out, were strictly speaking, obiter, and so it is unsurprising that Brennan J expressed them in a broad context, rather than for the purposes of a specific question which arose in the case. Church of Scientology itself, of course, had nothing to do either with discovery or with production. However, some indication of the context within which Brennan J made his observations about the public interest may be gained by a reading of the case to which his Honour referred, Lewes Justices. That case concerned applications to set aside summonses to witnesses. It is clear that each of their Lordships, in his concurring judgment upholding the public interest objection, was concerned, and concerned only, with a situation in which the production of a document was sought. This consideration, in our view, makes it quite improbable that Brennan J had in mind only the stage of discovery, and not, as imputed to him by the trial Judge, the combined process of discovery and production.

37 For the above reasons, we agree with the primary Judge that the observations of Brennan J in Church of Scientology should not be regarded as precluding the court, in a case like the present, from requiring the filing and service of an affidavit of discovery or list of discoverable documents identifying, as appropriate, each document to which objection, on the ground of public interest or any other available ground, is taken to production. Of course that is not to say that the imposition of such an obligation, in a case involving national security, would always be appropriate. Discovery is no longer the automatic entitlement of a party to litigation. Nothing we have said above should be taken as implying that it would be irregular for the court, in the exercise of its discretion, to decline an application for discovery, or to grant such an application in a confined way, if the circumstances of the case, including those relevant to national security, required either such outcome. Such questions are, however, to be resolved in the discretion of the docket Judge. That is what happened in the present case. For reasons stated above, we are not persuaded that the appellant has surmounted the high barrier to overturning an exercise of discretion by a primary Judge on a matter of practice and procedure.

38 A consideration of the appellant’s third ground requires a brief reference to the structure of Part IV of the ASIO Act. Save in circumstances which are excluded from the application of that Part, a person with respect to whom an adverse, or a qualified, security assessment is furnished by ASIO to a Commonwealth or State agency or authority is entitled to be notified of the assessment, and to be given a copy thereof. He or she may apply to the Administrative Appeals Tribunal ("the Tribunal") for a review of the assessment. However, Part IV does not apply in specified situations, including those of the respondents in the present appeals. The respondents, therefore, were excluded from the class of persons entitled to be provided with copies of the security assessments made in relation to them, and to challenge those assessments before the Tribunal. According to the submissions of the appellant, there is thus established a statutory scheme which would be circumvented if a person in the position of the respondents could obtain a copy of his or her security assessment by the simple expedient of commencing proceedings and obtaining discovery from the Director-General.

39 It was not submitted that the primary Judge had misunderstood, or even misdescribed, the nature of the appellant’s point in this regard. The appellant accepted that the point was as described by his Honour in the passage set out in par 10 above. There were, however, two respects in which, according to the appellant, his Honour had disposed of the point as though it were something different. First, attention is drawn to his Honour’s observation that "it goes too far to imply into the ASIO Act an intention not to allow discovery of such a document if the justice of the case otherwise requires it." Secondly, the appellant pointed to his Honour’s conclusion that the "submission that discovery would circumvent the ASIO Act and therefore constitute an abuse of process must fail." In expressing himself in this way, according to the appellant, his Honour failed to deal with the essence of the point raised by the appellant, which was that, as a matter of discretion, his Honour should have recognised that the ASIO Act followed the kind of scheme to which we have referred.

40 We consider that the appellant’s submissions in these respects seek to base too fine, and too pedantic, a distinction on the particular way in which his Honour expressed himself. This is the very kind of appellate objection which should not, consistent with Adam P Brown, be entertained in a situation involving the exercise of a discretion on a matter of practice and procedure. In point of substance, his Honour was manifestly aware of the nature of the appellant’s objection, and dealt with it in a way which was amply within the proper bounds of his discretion in a case of this nature. The particular ways in which his Honour expressed himself, as adverted to by the appellant, provide no basis for concluding that his Honour erred in the way he approached the point raised by the appellant.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan, North & Jessup.

Counsel for the Appellant:	Mr C Gunst QC

Solicitor for the Appellant:	Australian Government Solicitor

Counsel for the Respondent:	Mr JWK Burnside QC & Mr LK Maher

Solicitor for the Respondent:	Maurice Blackburn Cashman

Date of Hearing:	28 February 2008

Date of Judgment:	18 July 2008

Federal Court of Australia - Full Court

O'Sullivan v Parkin [2008] FCAFC 134 (18 July 2008)