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Owners Corporation Plan No RP 015268 v Yarra City Council [2023] VSC 318 (8 June 2023)

Last Updated: 13 June 2023

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 00519

BETWEEN:

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JUDICIAL REVIEW – Practice and procedure – Discovery – Application for discovery in judicial review proceeding – Relevant principles applicable to applications for discovery in judicial review proceedings – Whether the plaintiff has a good, or at least arguable, case proof of which would be aided by discovery – Application for discovery dismissed – Australian Society for Kangaroos Inc. v Secretary, Department of Environment, Land, Water and Planning [2018] VSC 88 – Moreland City Council v Minister for Planning [2014] VSC 468 – Volunteer Fire Brigades Victoria Inc v Country Fire Authority [2016] VSC 573.

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TABLE OF CONTENTS

HER HONOUR:

1 In this proceeding, the plaintiffs seek an order quashing a declaration that parcels of land are public highways. The defendant is the local government council which caused the declaration to be made.
2 This ruling concerns a dispute about documents. By summons filed on 20 March 2023, the plaintiffs seek discovery from the defendant. The defendant opposes the application. As the plaintiffs commenced this proceeding by originating motion, and not by writ, they must obtain leave from the Court to obtain discovery from the defendant.
3 I disallow the plaintiffs’ application for discovery. I will now give my reasons.

Materials

4 I have read the plaintiffs’ originating motion and the following material:

(a) the affidavits of the plaintiffs’ solicitor, Robert Sutherland McKay, affirmed on 13 February, 20 March and 16 May 2023. I will refer to these as the first, second and third McKay affidavits respectively;
(b) the plaintiffs’ written outline of submissions dated 17 May 2023; and
(c) the defendant’s written outline of submissions dated 16 May 2023.

5 Turning now to the dispute in this proceeding.

Dispute in this proceeding

6 On 15 December 2022, the Victorian Government Gazette made the declaration that is in dispute in this proceeding. I shall refer to this as the ‘declaration’. The declaration refers to the parcels of land to be declared public highways as ‘hiatus land’, not contained in any certificate of title, and ‘triangular land’, shown on a certificate of title. Diagrams of the parcels of land are contained in the declaration. The land abuts Sandeman Place in Carlton. Properties with addresses in Webb Street, George Street and Albert Place abut Sandeman Place.
7 The declaration records that the defendant, Yarra City Council, resolved to make the declaration at its meeting on 6 December 2022 acting under s 204(1) of the Local Government Act 1989 (the ‘LGA 1989’).
8 The plaintiffs are landowners. By their originating motion filed on 13 February 2023, they say the following. Portions of the ‘hiatus land’ have been in their exclusive possession since about 1980, and they intend to make an adverse possession claim. The ‘triangular land’ is their common property. In paragraph 33 of their originating motion, the plaintiffs say the procedure adopted by the defendant to make the declaration was unjust and failed to afford the plaintiffs a fair hearing.
9 Further, the plaintiffs say that the defendant did not act impartially. The partiality allegations are pleaded in paragraph 35 of the originating motion, with reference to the matters pleaded in paragraph 33. The plaintiffs say there was a dispute with other landowners regarding the land declared as a public highway. I will adopt the plaintiffs’ description and refer to these other landowners, by shorthand, as the Webb Street owners. The plaintiffs say the defendant engaged directly with the Webb Street owners as to the merits of the matter. They say the defendant assured the Webb Street owners that matters would be resolved in their favour. The plaintiffs say these interactions occurred without their knowledge or involvement.
10 There are further allegations made in the originating motion that are not relied upon for this application. For instance, the plaintiffs say the defendant failed to take into account mandatory considerations. They say that jurisdictional facts conditioning the valid exercise of power have not been sustained and accordingly, the declaration is void.
11 The proceeding is defended. At the time of the hearing, the defendant’s affidavits in response were not yet due and had not been filed.
12 Turning now to the background of this proceeding.

Background

13 On 17 March 2022, the defendant caused a declaration to be made in the Victorian Government Gazette of public highways over portions of land, including the hiatus land and triangular land. On 9 May 2022, the plaintiffs commenced a proceeding in the Supreme Court of Victoria seeking that the declaration be quashed. On 24 June 2022, consent orders were made quashing the declaration. The consent orders referred to the parties’ joint memorandum dated 16 June 2022. At paragraph L of the joint memorandum, the defendant conceded that contrary to:

(a) section 223(1)(b)(i) of the Local Government Act 1989 (Vic), it failed to provide the Plaintiffs with an opportunity to be heard in support of their written submissions made on 1 October 2021; and

(b) section 223(1)(b)(iii) of the Local Government Act 1989 (Vic), it failed to provide the Plaintiffs with reasonable notice of the day, time and place of the meeting at which it was considering the Plaintiffs’ written submissions.

Plaintiffs’ application

25 Turning now to the plaintiffs’ summons and the documents sought in paragraph 1 of the summons. Sub-paragraphs (a)-(g) refer to the Rodwell email and seek documents referred to in that email. Sub-paragraphs (i) and (j) seek documents comprising of the evidence referred to in paragraphs 5.2.1(e) and (f) of the defendant’s meeting agenda of 15 November 2022.
26 The plaintiffs properly conceded that sub-paragraph 1(h) was overly broad, and I will not address it further.

Submissions

27 Both parties made oral and written submissions. They need not all be reiterated here. I will now outline key submissions. I will refer to the authorities relied upon by the parties, to the extent necessary, in my discussion of applicable law.

Plaintiffs’ submissions

28 It can be inferred from the Rodwell email that the defendant relied substantially on evidence from the Webb Street owners or their affiliates to which the plaintiffs were not privy. The plaintiffs refer to parts of the Rodwell email that support the inference and show that the defendant’s disclosure of communications is incomplete. Further, they say that the Rodwell email was attached to the 25 October 2022 meeting agenda as a submission, and was the only written submission by the Webb Street owners disclosed to the plaintiffs. The email, authored by an officer of Council, Mr Vass, assures Mr Rodwell the declaration would be gazetted.
29 The plaintiffs refer to in paragraphs 5.2.1(e) and 5.2.1(f) of the report in the meeting agenda papers of 15 November 2022. Those items refer to documents comprising ‘evidence’ of the Webb Street owners’ vehicle movements and ‘evidence provided and available to Council’ supposedly refuting the adverse possession claim. The plaintiffs say they do not have this evidence and accordingly, that they do not know the material relied upon by the decision-maker.
30 There is no evidence the Councillors themselves carried out investigations. The detailed report in the meeting agenda papers was submitted to Councillors for their consideration, made recommendations and marshalled evidence. It was curated by people other than Councillors. It is therefore legitimate to look to evidence that the Councillors considered given they made the strong recommendation that carriageway rights existed and adverse possession did not. The Councillors made their decision based on the report. The material before the defendant’s officers who investigated the issue is discoverable.
31 The Rodwell email shows the defendant had prepared a gazettal notice. This shows pre-judgment. There is a reference to briefing the compliance team, but the brief is unknown. There is a reference to a telephone call with Councillor Stephen Jolly, and the documents evidencing those communications are sought.
32 There is a sound prima facie case to the effect that the defendant and its officers relied on a significant body of written communications with the Webb Street owners in making the decision to declare the public highway, or recommending it be made. This material was not given to the plaintiffs, and Mr Rodwell was given assurances that the declaration would proceed even before the plaintiffs were given notice of the opportunity to make submissions.
33 This proceeding involves factual content absent from most judicial review proceedings as the defendant was required to resolve disputed questions of fact and law as to the existence of property rights. Further, the alleged denial of procedural fairness is inherently factual and evidence-based as it focuses on the undisclosed communications between defendant’s officers and the Webb Street owners.
34 The plaintiffs say they have produced sufficient evidence that the communications with the Webb Street owners occurred and they were an important part of the ultimate decision. Discovery is needed to understand the full extent and nature of the communications. Further, the Rodwell email and 15 November 2022 agenda cannot be understood without the disclosure of the documents.
35 The case is unusual as the defendant relies on a power of extraordinary breadth, namely s 204(1) of the LGA 1989, to claim property rights without compensation and without determination in Court. Accordingly, it is arguable that procedural fairness requires they be provided the communications with the Webb Street owners so they can understand and respond to them. Procedural fairness requires that the defendant and its officers should avoid prejudgment of the issues prior to them having the opportunity to respond. There is a sound basis to infer this did not occur.
36 The categories sought in sub-paragraphs 1(a)-(g), (i) and (j) of the summons are precisely targeted, and do no more than seek disclosure of documents already referred to in one of two critical documents disclosed by the defendant as being relevant to the decision-making process, namely the Rodwell email, which was classified as a submission by the defendant, and the agenda for the 15 November 2022 meeting containing the documentation provided to the defendant prior to it making the impugned decision. These two fundamental documents simply cannot be understood without disclosure of the documents sought. The defendant officer’s report, relied upon by the defendant, made generic assessments on the strength of evidence. This ‘evidence’ is referred to in paragraphs 5.2.1(e) and (f) of the officer’s report for the 15 November 2022 meeting. If any facts alleged or asserted by the Webb Street owners to informed the officer’s conclusion, the plaintiffs wish to see that material.
37 In reply to the defendants: it is inappropriate to progress into the merits and underlying property rights asserted by their adverse possession allegations. The plaintiffs have occupied the land in excess of 40 years.^[1] As a consequence of the declaration, any title would be defeated, so their claimed rights cannot be tested. The strength of their case is to be determined at trial. The question advanced by discovery is whether their rights were determined by the defendant fairly in accordance with the law. Section 204(1) contains the condition there must be a ‘road’ within the meaning of s 3 of the LGA 1989. The defendant in effect decided there was a road. It was required to look at the countervailing case of adverse possession and make a factual determination.
38 In reply to the defendants: paragraphs 33(c)-(g) of the originating motion are effectively the operative paragraphs that govern the application. They allege the defendant commenced the process without notice and engaged in communications with the Webb Street owners without notice to the plaintiffs, failed to inform the plaintiffs of the nature of the Webb Street owners’ evidence, failed to investigate the plaintiffs’ case, engaged directly with the Webb Street owners, and gave assurances that the issue would be resolved in their favour without the knowledge of the plaintiffs. After the quashed declaration, the defendant recommenced the process without further investigating the merits.

Defendant’s submissions

39 The defendant recorded detailed reasons for its declaration motion. The materials it relied upon are available, and were tabled and debated at a public meeting. They are described in the defendant’s meeting minutes. They are before the Court and exhibited to the first McKay affidavit. The plaintiffs are seeking the documents that lie behind the material.
40 The plaintiffs do not have a good or arguable natural justice case. Firstly, the plaintiffs’ case rests on a vague assertion of adverse possession of land. Yet there is a longstanding issue of strangers turning their vehicles on the land without seeking the plaintiffs’ permission. The act of the plaintiffs erecting a fence/gate several years ago led to this process commencing, as recorded in the defendant’s meeting minutes. That is the antithesis of proof of the plaintiffs’ adverse possession claim. More fundamentally, there is a complete absence from their materials that they sought to register or formalise their asserted title at any stage, despite claiming they concreted the land from 1979. They have put no evidence to the Court to formalise their claim. The adverse possession claim matters because it is central to how the plaintiffs construct their natural justice argument. In paragraph 33(a) of the originating motion, they allege that the defendant must determine valuable property rights.
41 Secondly, the natural justice case is weak because it rests on a fundamental misconception of obligations that arise on the defendant under s 204(1) of the LGA 1989. It ignores the defendant's powers, functions and constitution, including the statutory distinction between Councillors who comprise the defendant and the defendant’s officers. It is in the power of a council to make a declaration subject to gazetting it. Council is the decision-maker. The decision maker is not paid Council staff or officers. The plaintiffs allege bias from the officers who prepared the report or other documents. The plaintiffs misconceive the nature and role of a local government Councillor.
42 The plaintiffs have failed to demonstrate how discovery will aid proof of the natural justice case. Their summons does not link their application to their natural justice case in paragraphs 33 and 34 of their originating motion. The plaintiffs have not pointed to any particular sub-paragraph in paragraph 33 of the originating motion to say why discovery is needed. Paragraphs 33(a) and (b) concern matters of law, not fact. Paragraphs 33(c)-(g) appear to relate to the history of the quashed declaration. Paragraph 33(h) appears to rest on the publicly available video recording of the meeting in question. Paragraphs 33(i)-(n) appear to rest on material already before the Court.
43 The Rodwell email was sent when the defendant was considering making the earlier declaration that was quashed. As such, the plaintiffs are seeking discovery of matters referred to in an email sent by a resident to the defendant in relation to the quashed declaration, which is not in issue in this proceeding. Even assuming the Rodwell email proves to be an accurate representation of what occurred, how could it prove the plaintiffs’ case?
44 Sub-paragraphs 1(a) and (b) of the summons refers to outgoing letters from Council to Mr Rodwell. How does material received by Mr Rodwell prove the plaintiffs’ case of bias from Council?
45 Sub-paragraph 1(c) of the summons refers to a conversation between Mr Rodwell and Councillor Jolly. It cannot show there is pre-judgment on the part of all Councillors. Moreover, in his email, Mr Rodwell refers to having spoken to Councillor Jolly and being advised that Council had not followed the correct process and was starting again. It is a case of a Ward Councillor speaking to a Ward resident.
46 Sub-paragraph 1(d) of the summons refers to a brief to the defendant’s compliance team. This was an incident in 2020, when the plaintiffs started to put in posts and a gate, and closed off the area where neighbours were turning their cars. It was initially raised with the defendant as an issue for by-law officers. Evidently, the compliance officer was briefed in that respect. But nothing comes of it. It did not proceed as a compliance matter. It proceeded as a road declaration matter. It is unclear how the briefing assists in aiding the plaintiff’s natural justice case.
47 Sub-paragraph 1(e) of the summons refers to instruction from the defendant to their legal representatives with respect to the gazettal notice. In what way do the instructions aid in proof of the plaintiffs’ natural justice case?
48 Sub-paragraph 1(f) of the summons refers to the draft gazette notice. It would be unsurprising that a draft was prepared. If it was, the draft was quashed by the gazette. It proves nothing.
49 Sub-paragraph 1(g) of the summons refers to the ‘chain’ of emails behind the Rodwell email. It is not shown how the emails behind the Rodwell email that sits behind the quashed declaration, and precede the report tabled in support of the ultimate declaration, will aid in proof of the plaintiffs’ natural justice case.
50 Sub-paragraph 1(i) of the summons seeks documents sitting behind a report referred to in a further report considered by the defendant when making the declaration and is at least three steps away from the declaration. The reports were tabled. It is not shown how this will aid the plaintiffs’ natural justice case.

Applicable Law

51 I reiterate the principles outlined in my ruling in Rich v Ryan.^[2]

Rules 29.01 and 29.01.1(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) provide:

29.01 Application and definition
(1) Except where the Rules of this Order otherwise provide, the Order applies only—

(a) to a proceeding commenced by writ; and
(b) to a proceeding in respect of which an order has been made under Rule 4.07(1).

(2) In this Order possession means possession, custody or power.
29.01.1 Scope of discovery
(1) Unless the Court otherwise orders, discovery of documents pursuant to this Order is limited to the documents referred to in paragraph (3).
(2) Paragraph (1) applies despite any other rule of law to the contrary.
(3) Without limiting Rules 29.05 and 29.07, for the purposes of this Order, the documents required to be discovered are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given—

(a) documents on which the party relies;
(b) documents that adversely affect the party's own case;
(c) documents that adversely affect another party's case;
(d) documents that support another party's case.

(4) Notwithstanding paragraph (3)—

(a) if a party giving discovery reasonably believes that a document is already in the possession of the party to which discovery is given, the party giving discovery is not required to discover that document;

(b) a party required to give discovery who has, or has had in the party’s possession more than one copy, however made, of a particular document is not required to give discovery of additional copies by reason only of the fact that the original or any other copy is discoverable.

(5) For the purposes of paragraph (3), in making a reasonable search a party may take into account—

(a) the nature and complexity of the proceeding;

(b) the number of documents involved;

(c) the ease and cost of retrieving a document;

(d) the significance of any document to be found; and

(e) any other relevant matter.

Rule 29.07 of the Rules provides:

29.07 Order for discovery
(1) In a proceeding within Rule 29.01, notwithstanding that the pleadings between any parties are not closed, the Court may order that any of those parties make discovery of documents to any other of those parties.
(2) In a proceeding not within Rule 29.01, the Court may at any stage order any party to make discovery of documents.
(3) An order under paragraph (1) or (2) may be limited to such documents or classes of document, or to such questions in the proceeding, as the Court thinks fit.
(underline added)

Section 54 of the Civil Procedure Act 2010 (‘CPA’) indicates that, unless the Court otherwise orders, discovery is to be in accordance with the Rules.

54. Discovery of documents to be in accordance with rules of court

Unless a court otherwise orders, discovery of documents in a civil proceeding is to be in accordance with the rules of court.

Section 55 of the CPA provides the Court with broad powers in respect of orders and directions in relation to discovery.

55 Court orders for discovery
(1) A court may make any order or give any directions in relation to discovery that it considers necessary or appropriate.
(2) Without limiting subsection (1), a court may make any order or give any directions—

(a) requiring a party to make discovery to another party of—

(i) any documents within a class or classes specified in the order; or

(ii) one or more samples of documents within a class or classes, selected in any manner which the court specifies in the order;

(b) relieving a party from the obligation to provide discovery;

...

(3) A court may make any order or give any directions requiring a party discovering documents to—

(a) provide facilities for the inspection and copying of the documents, including copying and computerised facilities;

(b) make available a person who is able to—

(i) explain the way the documents are arranged; and

(ii) help locate and identify particular documents or classes of documents.

(4) A court may order or direct a party to pay to another party an amount specified or determined by, or in accordance with, the order or direction in relation to the costs of discovery in any manner considered appropriate by the court, including, but not limited to, payment in advance of an amount to the other party for some or all of the estimated costs of discovery.
(5) Without limiting any other power of a court to make costs orders, a court may order or direct that costs payable under an order or a direction under subsection (4) are recoverable as costs in the proceeding.
(underline added)

The principles concerning discovery applications in judicial review matters were recently summarised by Ginnane J in Australian Society for Kangaroos Inc. v Secretary, Department of Environment, Land, Water and Planning^[3]. His Honour stated that:

Discovery is often not ordered in judicial review proceedings because the documents evidencing the decision under review are usually before the court including a statement of reasons. But discovery can be ordered if the plaintiff has a good, or at least arguable, case proof of which would be aided by discovery. However, that is subject to any countervailing or discretionary factors, including the nature of the case and the time at which the application is made. It is sometimes said that the same discovery rules that apply in civil cases also apply in judicial review cases. But, in judicial review cases, while any discovery request will be assessed by reference to the issues raised, usually the primary focus will be on the documents that were before the decision-maker and which will have been provided to the plaintiff and be before the court.^[4]

In Moreland City Council v Minister for Planning^[5], Daly AsJ held that:

Under the rules of this Court, discovery is ordered in cases commenced by originating motion only in ‘special circumstances’. The rationale behind this is that proceedings commenced by way of originating motion are generally those of a character where there is no substantial factual dispute. Applications for judicial review are generally, by their very nature, concerned with questions of law rather than factual disputes. But there is no barrier in principle to discovery being ordered in appropriate circumstances, and in fact discovery has been ordered in judicial review proceedings in Victoria.
Most of the authorities which have considered the question of whether discovery ought to be ordered have arisen, as might be expected, in the federal jurisdiction. The main principles to be distilled from these authorities can be summarised as follows:

(a) discovery in judicial review cases will not be ordered in the usual case, but may be ordered where the applicant has ‘a good case proof of which would be aided by discovery’;

(b) where the proceeding before the Court requires the court to assume a fact finding role, discovery may well be ordered to assist the court in fulfilling that role;

(c) in cases where the reasonableness, or ‘rationality’ of the decision is in question, discovery may be ordered in respect of the documents before the relevant decision-maker;

(d) the fact that a decision maker has provided reasons for the relevant decision may influence the court to exercise its discretion against ordering discovery; and

(e) while there appears to be a more relaxed approach to the question of ‘fishing’ in later decisions compared with earlier decisions it is still the case that the making of a mere assertion in an originating process, without more, is insufficient to persuade a Court to exercise its discretion to order discovery in judicial review matters.

In my view, the threshold test is whether the applicant has a good, or at least an arguable case, proof of which would be aided by discovery, subject to any countervailing authority or discretionary factors. If the case is shown to be more than merely speculative, then the existence of a factual question which might need to be resolved by the Court in its determination of the issues in the proceeding is probably sufficient to amount to ‘special circumstances’ to enliven the Court’s jurisdiction to order discovery, but is not, of itself, determinative of whether the Court should exercise its discretion to do so.^[6]

The parties cited authorities predating the CPA. The CPA is relevant to this application. The overarching purpose and objects must be firmly borne in mind. The overarching purpose of the CPA and the rules of Court in relation to civil proceedings are to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.^[7] Section 9(1) of the CPA requires the Court to further the overarching purpose by having regard to a number of objects, including:

Court’s powers to further the overarching purpose
(1) In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects—

(a) the just determination of the civil proceeding;

(b) the public interest in the early settlement of disputes by agreement between parties;

(c) the efficient conduct of the business of the court;

(d) the efficient use of judicial and administrative resources;

(e) minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for—

(i) the fair and just determination of the real issues in dispute; and

(ii) the preparation of the case for trial;

(f) the timely determination of the civil proceeding;

(g) dealing with a civil proceeding in a manner proportionate to—

(i) the complexity or importance of the issues in dispute; and

(ii) the amount in dispute.

In Volunteer Fire Brigades Victoria Inc v Country Fire Authority,^[8] J Forrest J outlined the following principles, which I adopt:

In Liesfield v SPI Electricity Pty Ltd (Ruling No 1), I discussed the scope of both s 55(1) of the CPA and O 29 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic):

These provisions make clear that the Court’s powers in relation to discovery are broad. In sum, both the Act and Rules mandate that any order concerning discovery should be directed to finding the most efficient, effective and economical management of the discovery exercise, bearing in mind the nature and complexity of the trial.

There is no ambiguity about the application of the principles of the CPA. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited the High Court said of its NSW analogue:

The evident intention and the expectation of the CPA is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.
That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge’s individualistic idea of what is fair in a given circumstance. Rather, the dictates of justice referred to in s 58 require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the CPA can be furthered, together with other relevant matters, including those referred to in s 58(2). The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs. The terms of the CPA assume that its purpose, to a large extent, will coincide with the dictates of justice.^[9]

The approach to discovery has changed markedly in the past half-decade or so. The Peruvian Guano test has been consigned to the dustbin ...
The overriding consideration of the CPA is to ensure that the parties receive a fair trial i.e. ‘a just resolution’ to use the words of the CPA. However, a fair trial is not a perfect trial. It is, rather, the best trial that a court can provide to the parties within reason and in proportion to the issues in dispute and the court’s resources. Accordingly, demands for discovery of documents which are peripheral to the central issues cannot be entertained. The Court is obliged to focus on the central issues as best it can be determined at this point in the litigation.^[10]

52 I add the following principles:^[11]

Ordinarily, in a judicial review proceeding, the legality of a decision is determined by reference to the material that was before the decision-maker when he or she made the impugned decision and therefore evidence that was not then before the decision-maker is usually inadmissible.^[12] However, there are some classes of evidence that is admissible even though it was not before the decision-maker. The classes that require consideration in the present case are:

(i) Evidence that constitutes an admission by the decision-maker.

(ii) Evidence that falls within the Prasad principle, that is, evidence that is capable of showing that the decision-maker failed to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, and the failure renders the decision legally unreasonable or constitutes a constructive failure to exercise jurisdiction.

(iii) Evidence that is capable of showing that the decision-maker made an error as to a jurisdictional fact and therefore did not have jurisdiction to make the decision.

(iv) Evidence that is capable of showing that the decision-maker made an error as to a non-jurisdictional fact of such a nature that he or she thereby constructively failed to exercise jurisdiction.

(v) Expert evidence that is capable of showing that there was no intelligible foundation for the decision.

53 The declaration was made pursuant to s 204(1) of the LGA 1989. Section 204(1) states:

Council may declare a road to be a public highway or to be open to the public
(1) A Council may, by notice published in the Government Gazette, declare a road in its municipal district to be a public highway for the purposes of this Act.
...

54 There was dispute between the parties about the interpretation of s 204(1) and whether a decision-maker has an obligation to comply with natural justice, and in particular, provide a fair hearing as contended by the plaintiffs. The defendant did not go so far as to contend there was no natural justice requirement. It is agreed, and I accept, that s 204(1) does not import a curial process.
55 As the defendant submits that the plaintiffs have no good or arguable case on natural justice, it is necessary to outline some principles regarding s 204(1) of the LGA 1989 and the statutory framework, including s 207A and 223(1).
56 Section 207A provides:

Submissions under section 223
A person may make a submission under section 223 on the proposed exercise of any power under—
...
(c) sections 204(1) and (2).

57 Section 223(1) provides:

(1) The following provisions apply if a person is given a right to make a submission to the Council under this section (whether under this or any other Act)—

(a) the Council must publish a public notice—

(i) specifying the matter in respect of which the right to make a submission applies;

(ii) containing the prescribed details in respect of that matter;

(iii) specifying the date by which submissions are to be submitted, being a date which is not less than 28 days after the date on which the public notice is published;

(iv) stating that a person making a submission is entitled to request in the submission that the person wishes to appear in person, or to be represented by a person specified in the submission, at a meeting to be heard in support of the submission;

(b) if a request has been made under paragraph (a)(iv), the Council must—

(i) provide the person with the opportunity to be heard in support of the submission in accordance with the request at a meeting of the Council or of a committee determined by the Council;

(ii) fix the day, time and place of the meeting;

(iii) give reasonable notice of the day, time and place of the meeting to each person who made a request;

(c) if the committee determined under paragraph (b)(i) is not responsible for making the decision in respect of which the submissions have been made, the committee must provide a report on its proceedings, including a summary of hearings, to the Council or the special committee which is responsible for making the decision;

(d) the Council or special committee responsible for making the decision must—

(i) consider all the submissions made under this section and any report made under paragraph (c);

(ii) notify in writing, each person who has made a separate submission, and in the case of a submission made on behalf of a number of persons, one of those persons, of the decision and the reasons for that decision.

58 A duty to comply with natural justice is implied in the s 204(1) process. An exercise of power under s 204(1) can significantly and adversely affect legal rights in property.^[13] It is well-established that in ‘the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions’. ^[14]
59 The obligation to afford procedural fairness to a particular party in administrative decision-making is first and foremost a question of statutory construction.^[15] Here, I accept that the statutory framework imports the minimum requirements of the fair hearing rule, but not a curial process, for the following reasons:

(a) local government council’s power to deal with roads is set out in Part 9 of the LGA 1989. Relevantly, s 204(1) confers a discretionary power to declare, by public notice, that a road is a public highway;
(b) section 207A grants the right for any person to make a submission on the proposed exercise of power under s 204;
(c) section 223(1) contains the steps to be taken where a person has a right to make a submission. It requires that the local government council: (a) publish a public notice, containing particulars of the proposed exercise of power, the date by which submissions are to be made and that a person may request to be heard; (b) provide a person with the ‘opportunity to be heard’ at a council meeting and give notice of the day, time and place of the meeting; (c) consider all submissions; and (d) notify any person who has made a submission of the decision and give reasons for the decision;
(d) in Mayberry v Mornington Peninsula Shire Council (‘Mayberry’), Richards J stated that s 223(1) is mandatory and operates as a constraint on the exercise of power in s 204.^[16] A failure to comply with s 223(1) constitutes a breach of natural justice;^[17]
(e) moreover, the legislative history to s 223(1) indicates that the local government council was intended to be subject to the requirements of natural justice. The provision was amended in 2008 to enhance the right to make a submission to council and thereby improve the transparency and accountability of council decision-making;^[18]
(f) the LGA 1989 does not make provision for the calling of witnesses, cross-examining council witnesses or inspection of documents (including documents that the local government council may have taken into consideration). Nor does it preclude the decision-maker (local government council) from informing itself as it sees fit; and
(g) ultimately, the decision-making process is not the result of an adversarial process. The courtroom is not the relevant paradigm. The local government council can be the moving party, investigator and decision-maker. Thus, while the fair hearing rule must be complied with in the sense contemplated by s 223(1), the standard of natural justice is lower than that required of judicial officers.^[19]

60 It is also necessary to address relevant principles regarding the local government council as decision-maker. The relevant principles were set out by Kaye J in Winky Pop Pty Ltd v Hobsons Bay City Council:^[20]

The question of the effect of “prejudgment” on the considerations of a councillor was given detailed consideration by the Supreme Court of Canada in Old St Boniface Residents Association Inc v The City of Winnipeg and the St Boniface-Saint Vital Community Committee. The relevant test was enunciated in the judgment of the majority, delivered by Sopinka J. That test has been cited and followed by Vincent J in Bycon Pty Ltd & Ors v Moira Shire Council & Ors and by Zeeman J in R v West Coast Council; ex parte the Strachan Motor Inn. In my view, those authorities, to which I shall further refer below, establish the following propositions:
(1) In determining whether there was prejudgment on behalf of a councillor, it must be borne in mind that councils are democratically elected, and that councillors necessarily carry out political and legislative roles. Accordingly, a councillor is not necessarily disqualified from participating in a decision because the councillor, previously, has held and expressed views on the matter in question.
(2) The appropriate test, taking into account the political and legislative nature of the role of a councillor, is whether the councillor, on the matter in question, is open to persuasion, notwithstanding his or her previously held and expressed views on the subject.
...^[21]

61 Kaye J held that if a particular councillor is said to have been biased and their involvement was determinative of the fate of the resolutions which determined the rights of the plaintiffs, the council may be said to have failed to comply with the rules of natural justice.^[22]
62 In McGovern v Ku-ring-gai Council (‘McGovern’),^[23] Basten JA said that:

... the fallacy underlying the appellant’s case was that Councillor Ryan was required to keep an open mind on the merits of the application until the final meeting at which the Council determined its response. Where a councillor forms a firm view as to the appropriate course to be taken there is no reason why he or she should pretend to maintain an open mind whilst the debate proceeds. If further material is presented, no doubt it should be considered, but it will not be a demonstration of bias based on prejudgment merely to maintain one’s original position if that position was properly adopted.^[24]

63 The following principles can be distilled from McGovern:

(a) in the context of a multi-member elected decision-making body, there is no requirement that each of the decision-makers keep an ‘open mind’ until every decision-maker is prepared to make a decision;^[25]
(b) an individual member is entitled to form a view on the information available to them and on direct observations.^[26] However, they must remain open to persuasion and must not take any step or make any statement to the contrary;^[27]
(c) if a member of a multi-member decision-making body was affected by apprehended bias, the consequences for the validity of the decision depends on whether the person reasonably suspected of pre-judgment decided the outcome;^[28] and
(d) the actual decision-maker is the Council. Whether the ‘rotten apple in the barrel’ undermined the validity of the ultimate decision depends on the circumstances of the case and the statutory regime.^[29]

64 In Magee v Boroondara City Council,^[30] the Court considered the scope and application of the rule against apprehended bias in the context of administrative decision-makers. In that case, Emerton J (as Her Honour then was) made the following findings.

(a) the formulation of the rule against apprehended bias on the part of judicial officers in Ebner v Official Trustee in Bankruptcy^[31] does not automatically apply to administrative decision-makers;
(b) the application of the rule depends upon the circumstances of the case, namely: the identity of the decision-maker, how they are to perform their task and what degree of neutrality is required of them;^[32] and
(c) a relevant circumstance is the role of a local government councillor, which necessarily involves a political and legislative role and regular interactions with community members including in respect of matters that might ultimately come before the council for determination.^[33]

65 Turning now to my analysis.

Do the plaintiffs have a good, or at least an arguable case, proof of which would be aided by discovery of categories 1(a)-(g), (i) and (j)?

66 I will now analyse this question in respect of each sub-category of documents sought in the summons.

Category 1(a) –letter from the defendant’s officer, Mr Vass, to Mr Rodwell dated 14 September 2021 (‘the Vass 14 Sept 21 letter’)

67 The plaintiffs say that the letter is relevant to proof of their natural justice case. At the highest, the letter could only be relevant to proving the allegations in paragraphs 33(c), (d), (e) and (g) of the originating motion. I shall outline those allegations shortly. I pause to observe that paragraphs 34 (denial of procedural fairness) and 35 (partiality) refer back to paragraph 33, and to the extent there is overlap with paragraphs 33(c), (d), (e) and (g), the same analysis will apply.
68 Paragraph 33(c) of the originating motion alleges that the defendant failed to afford the plaintiffs a fair hearing because they commenced the declaration process without any notice to them. The particulars refer to communications with the Webb Street owners from 2020 until about mid-2021. Paragraph 33(d) alleges that the defendant’s officers failed to inform the plaintiffs, in detail, of the evidence they relied upon from the Webb Street owners in the process of investigating and deciding key questions of fact, and failed to investigate both sides of the case. Paragraph 33(e) alleges that the defendant’s officers engaged directly with the Webb Street owners regarding the merits of the matter, and gave them assurances the matters would be resolved in their favour, without the knowledge or involvement of the plaintiffs. Paragraph 33(g) alleges that after the quashed declaration, the defendant recommenced the investigation of the merits on the basis of evidence already produced in connection with the quashed declaration.
69 The plaintiffs do not have an arguable natural justice case, insofar as the allegations in paragraphs 33(c), (d), (e) and (g) and, to the extent they overlap, paragraphs 34 and 35, rely upon undisclosed communications between officers of the defendant and the Webb Street owners. As the outlined legal principles indicate, those officers do not constitute the defendant local government council. The officers were not the decision-maker. Nor is one Councillor the decision-maker. Evidently, the undisclosed communications were not before the decision-maker when it resolved to make the declaration. Moreover, the decision-maker gave reasons based on the material before it. Finally, there is a timing issue. The undisclosed communications were in the period leading up to the quashed declaration. The Rodwell email was simply treated as a submission in the papers before the decision-maker when it resolved to make the declaration.
70 Even if the plaintiffs had an arguable natural justice case in respect of paragraphs 33(c), (d), (e) and (g) or, to the extent they overlap, paragraphs 34 (denial of procedural fairness) and 35 (partiality), the Vass 14 Sept 21 letter cannot aid the plaintiffs’ natural justice case for the following reasons.
71 Firstly, it was not before Council when it made the impugned decision. It was not taken into account by the Councillors who made the decision.
72 Secondly, the impugned decision was made by resolution of the Councillors of the defendant. It was not, and could not lawfully have been, made by officers of the defendant.
73 Thirdly, the defendant provided reasons for its decision in sub-paragraph (c) of its resolution. These reasons do not rely upon the Vass 14 Sept 21 letter. Rather, as outlined above, those were the reasons in paragraphs 5.2 and 5.3 of the 15 November 2022 officers’ report, and paragraphs 1-3 of the 6 December 2022 report. Paragraph 5.2 contains the response of Council officers to the submissions made by the ‘George Street owners’ (the plaintiffs). The plaintiffs rely on the references to evidence in sub-paragraphs (e) and (f). Those sub-paragraphs should be read in context. Sub-paragraph (d) refers to aerial images of the land which is said to contradict the George Street owners’ claims of adverse possession. Sub-paragraph (e) refers to evidence from Webb Street owners about accessing and using the land for at least 35 years prior to construction of the 2020 fence. Sub-paragraph (f) concludes that “[a]lthough it is not free from doubt, the evidence provided and available to Council indicates the George St owners have not accrued rights of adverse possession....” The decision by Council was made on the basis of these conclusions, not the underlying evidence.
74 Fourthly, given its date, the Vass 14 Sept 21 letter can only have related to the quashed declaration, not this declaration.
75 Fifthly, even if the letter showed partiality, it was written by an officer of the defendant, not the decision-maker. It is not arguable that it proves partiality by the decision-maker.
76 Sixthly, I reject the plaintiffs’ submission that they do not know the material before the decision-maker. The material is referred to in the Council agenda papers and resolution.
77 Seventh, I reject the plaintiffs’ submission that obtaining the Vass 14 Sept 21 letter is necessary because it evidences communications with the Webb Street owners that were ultimately an important part of the defendant’s decision to make the declaration. That submission is at odds with the reasons that Council gave for its decision that were recorded in its resolution.
78 Eighth, I reject the plaintiffs’ submission that there was a factual dispute to be determined about property rights, and that the Vass 14 Sept 21 letter is therefore discoverable. Given that the Vass 14 Sept 21 letter was an outgoing letter from the defendant, it cannot aid in proof of the alleged property rights.
79 Ninth, and relatedly, I reject the plaintiffs’ submission that the natural justice case is inherently factual because it relies upon the defendant’s undisclosed communications with the Webb Street owners, and therefore the Vass 14 Sept 21 letter is discoverable. The proceeding relates to the impugned decision. As already outlined, the decision-maker did not rely upon the defendant’s undisclosed communications to make its decision.

Category 1(b) – email from Mr Vass to Mr Rodwell dated 13 May 2021

80 The same analysis applies as for category 1(a).

Category 1(c) – documents recording or referring to the conversation between Councillor Stephen Jolly and Mr Rodwell on 28 September 2021

81 The same analysis applies as for category 1(a), save that this does not relate to an outgoing document but a conversation with a Councillor. There is no evidence to suggest that the Councillor was doing anything other than his job as a Councillor. However, more importantly, the individual Councillor was not the decision-maker. There is no suggestion that Councillor Jolly’s role was determinative. He was part of a body of decision-makers.

Category 1(d) – brief to the defendant’s compliance team

82 The same analysis applies as for category 1(a), save that this does not relate to an outgoing document but an internal brief.

Category 1(e) – instruction given to defendant’s legal representative for gazettal of public highway

83 The same analysis applies as for category 1(a), save that this does not relate to an outgoing document but rather the instruction given by the defendant to their legal representative for a gazettal notice. This must only be relevant to the quashed declaration, not the declaration in this proceeding.

Category 1(f) – draft gazette notice

84 The same analysis applies as for category 1(a), save that this does not relate to an outgoing document but rather the draft gazette notice for the quashed declaration. It is not relevant to the declaration in this proceeding.

Category 1(g) – ‘chain’ of emails referred to in the Rodwell email

85 The same analysis applies as for category 1(a), save that this is not restricted to one outgoing email from the defendant. It relates to an email chain between Mr Rodwell and Mr Vass that appears to have included an email of 13 May from Mr Vass to Mr Rodwell.

Category 1(i) – documents comprising the ‘evidence provided and available to Council’ indicating the plaintiffs had not accrued adverse possession rights, as referred to in paragraph 5.2.1(f) of the defendant’s meeting agenda of 15 November 2022

86 The same analysis applies as for category 1(a), save that this is not restricted to an outgoing email from the defendant.

Category 1(j) – documents comprising the ‘evidence’ of the Webb Street owners’ vehicle movements referred to in paragraph 5.2.1(e) of the defendant’s meeting agenda of 15 November 2022

87 The same analysis applies as for category 1(a), save that this is not restricted to an outgoing email from the defendant.

Additional matters

88 There are some additional matters I will address as a matter of completeness.
89 Firstly, the defendant submitted that the plaintiffs have no arguable case regarding their adverse possession claim. It is unnecessary for me to make a finding regarding this, and I decline to do so.
90 Secondly, given the findings above, it is unnecessary to consider the discretionary factors that would need to be considered if I had found that the plaintiffs had a good, or at least arguable case, which would be aided by discovery.

Conclusion

91 I will make orders dismissing the plaintiffs’ application for discovery.

SCHEDULE OF PARTIES

^[1] Affidavit of Robert Sutherland McKay affirmed on 13 February 2023 (‘first McKay affidavit’), [15]-[17].

^[2] [2018] VSC 201, [11]–[18].

^[3] [2018] VSC 88 (28 February 2018) (‘Australian Society for Kangaroos’).

^[4] Ibid, [21] (underline added).

^[5] [2014] VSC 468 (24 September 2014).

^[6] Ibid [12]–[14] (underline added) (citations omitted).

^[7] CPA s 7(1).

^[8] [2016] VSC 573 (29 September 2016).

^[9] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46; (2013) 250 CLR 303, 323 [56]–[57] (emphasis added).

^[10] [2016] VSC 573 (29 September 2016), [31]–[34] (emphasis in original) (citations omitted).

^[11] Mackenzie v Head, Transport for Victoria [2021] VSCA 100, [153] (Tate, Kyrou and Kennedy JJA) (‘Mackenzie’). See also Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority (No 2) (2022) 406 ALR 41, [285]–[286] (Bromberg J); Arik v Vicinity Centres PM Pty Ltd [2023] VSC 94 (Richards J).

^[12] Chandra v Webber [2010] FCA 705; (2010) 187 FCR 31, 43 [40]; [2010] FCA 705 (‘Chandra’).

^[13] Mayberry v Mornington Peninsula Shire Council [2019] VSC 623 [90(a)], [94] (‘Mayberry’); Followed in Howard Finance Pty Ltd v Yarra City Council [2020] VSC 610, [232]–[233].

^[14] Minister for Immigration and Border Protection v WZARH [2015] HCA 40, [30]. See also Konann Pty Ltd v Casey City Council [2018] VSC 565, [117]–[118] (Garde J).

^[15] Konann Pty Ltd v Casey City Council [2018] VSC 565, [123] (Garde J). See also Pulitano Pastoral Pty Ltd v Mansfield Shire Council  [2017] VSC 421 , [126], [134].

^[16] Mayberry, [86].

^[17] Mayberry at [86] citing Templestowe Developments Pty Ltd v Booroondara City Council [1997] 1 VR 504, 515–6; Costante v City of Preston [1994] VicRp 25; [1994] 1 VR 379, 383. See also Delta Properties Pty Ltd v Brisbane City Council [1955] HCA 51; (1955) 95 CLR 11, 18.

^[18] Explanatory Memorandum, Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008, 23; Victoria, Parliamentary Debates, Legislative Assembly, 11 September 2008 (Richard Wynne, Minister for Local Government).

^[19] See also La La Land Byron Bay Pty Ltd v The Independent Liquor and Gaming Authority [2014] NSWSC 1798, [129]–[130] (‘La La Land’). In that case, Magee was cited with approval.

^[20] [2007] VSC 468 (‘Winky Pop’).

21. ^[21] Winky Pop, [44] (citations omitted). Note that Winky Pop was cited with approval by Emerton J in Magee at [66].

^[22] Ibid, [55].

^[23] [2008] NSWCA 209 (‘McGovern’).

^[24] McGovern, [128] cited in La La Land [2014] NSWSC 1798, [134].

^[25] Ibid, [51], [56], [236].

^[26] Ibid, [59].

^[27] Ibid, [60].

^[28] Ibid, [31], [45]–[46].

^[29] Ibid, [38]–[39].

^[30] [2011] VSC 78 (‘Magee’).

^[31] [2000] HCA 63; (2000) 205 CLR 337, 344: The judicial officer will be disqualified if a fair minded lay observer might reasonably apprehend that they might not bring an impartial mind to the resolution of the dispute before them.

^[32] Magee, [43]–[45].

^[33] Ibid, [65].