Discovery at a price

When a prospective plaintiff does not have sufficient information to decide whether to commence proceedings, most lawyers would consider seeking an order for preliminary discovery.

But this may not be necessary.  If the prospective defendant is the State or one of its instrumentalities subject to the Freedom of Information Act 1982 (Vic) (the Act), then the Act may be used as an alternative to preliminary discovery, and may even be preferable.

This article describes the processes for requesting documents under the Act and for making an application for preliminary discovery.  It then considers the advantages and disadvantages of each option.

The Act

The aim of the Act is to “extend as far as possible the right of the community to access information in the possession of the Government of Victoria and other bodies constituted under the law of Victoria for certain public purposes”: s 3(1).

Section 17 of the Act provides that a person may “request a document of an agency or an official document of a Minister”.  There are several important defined terms in s 17:

• A “document” includes (among other things) documents in writing, photographs, sound recordings and films.
• A “document of an agency” is any document in the possession of an agency.
• An “official document of a Minister” is a document in the possession of a minister that “relates to the affairs of an agency” including a document that has passed from their possession but which they are still entitled to access.
• An “agency” is one of a heterogeneous group of councils, bodies established for public purposes and entities prescribed by regulations.^[1]  In total, there are 483 agencies and 38 ministers that are subject to the Act.

A request to access a document under the Act must be in writing and sent to the relevant agency or minister.  The request must provide sufficient information for the documents requested to be identified and must be accompanied by the application fee of $23.40.[2]

Once a request has been received, an agency or minister has 45 days to respond: s 21.  If they do not respond in that time, the agency or minister is deemed to have refused the request and the applicant may seek review of that deemed refusal before the Victorian Civil and Administrative Tribunal (VCAT): s 53.

If a decision to refuse access is made by an agency within 45 days, the applicant may have to seek internal review of that decision before proceeding to VCAT: s 51.  If a timely decision to refuse access is made by a minister, the applicant may proceed directly to VCAT to have the decision reviewed.

There are many grounds on which an agency or minister may refuse access to a document.  The most significant ground is that the document requested is an “exempt document”.  There are many categories of “exempt documents”.  A complete list is set out in Part IV of the Act.  The most notable examples are “internal working documents”, documents “affecting legal proceedings” and documents “affecting personal privacy”.

Documents “affecting legal proceedings” are simply documents subject to legal professional privilege: s 32(1).

Documents affecting personal privacy are exempt by virtue of s 33 of the Act.  Section 33 is by far the most commonly invoked exemption.[3]  In the 2007-2008 financial year it was invoked more than three times more frequently than the next most common exemption.[4]  A document is exempt under s 33 if its disclosure would involve the “unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person)”.  Information relating to personal affairs is defined broadly to include any information that identifies a person or discloses their address or location, or from which their identity, address or location could reasonably be determined.

The “internal working documents” exemption is the second most commonly invoked exemption.[5]  It is dealt with in s 30 of the Act.  A document must fulfil two requirements to be classed as an “internal working document”:

• it must disclose advice or deliberations made in the course of, or for the purpose of, the deliberative processes of an agency, minister, member of council or the government; and

• the disclosure of the document must be contrary to the public interest.

An agency or minister may give full or partial access to a document.  If access is not granted to a document in full, the agency or minister must give notice in writing to the applicant of its decision and the reasons for that decision: s 27.

Ministers and agencies have a responsibility to assist an applicant who has not directed their request to the appropriate agency or minister or not made their request in compliance with the Act: s 17(3).  Ministers and agencies must also administer the Act with a view to making the maximum amount of government information available to the public promptly and inexpensively: s 16(1).

Preliminary discovery

Rule 32.05 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (the Rules) permits a prospective plaintiff to obtain discovery from an identified prospective defendant in order to decide whether to commence a proceeding in the Court.

The purpose of r 32.05 is to allow a prospective plaintiff to make an informed decision about whether or not to commence a proceeding so that the parties and the Court do not waste time dealing with a misconceived proceeding that may not have been brought had the plaintiff been better informed.

Rule 32.05 allows preliminary discovery where:

• there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description the applicant has ascertained;
• after making all reasonable inquiries, the applicant does not have sufficient information to decide whether to commence a proceeding in the Court to obtain relief from that person;
• there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had in their possession documents relating to the question of whether the applicant has the right to obtain relief; and
• the inspection of those document by the applicant would assist the applicant in making the decision whether to commence a proceeding in the Court to obtain relief.

If these requirements are made out, the Court may order that the prospective defendant make discovery to the applicant of any document relating to the question of whether the applicant has the right to obtain relief and which would assist the applicant in deciding whether to commence a proceeding in the Court to obtain that relief.

Order 15A r 6 of the Federal Court Rules 1979 (Cth) and r 13.05 of the Magistrates’ Court Civil Procedure Rules 2009 (Vic) are the equivalents of r 32.05 of the Rules.

The procedure for making an application under r 32.05 is set out in r 32.08.

An applicant must apply with an originating motion supported by an affidavit stating the facts on which the application is based, and describing the documents or class of documents in respect of which an order is sought.  The Court will usually order that the applicant pay the costs and expenses of the party making discovery.

The applicant may recover these costs if it then commences a proceeding to obtain relief and succeeds.  The Court may make its order for preliminary discovery conditional on the applicant giving security for the costs and expenses of the party making preliminary discovery.[6]

Does the Act prevent such a request?

Section 31(1)(a) of the Act could present an obstacle to using it as an alternative to preliminary discovery.  This section exempts a document if its disclosure “would, or would be reasonably likely to … prejudice the enforcement or proper administration of the law in a particular instance”.

The effect of s 31(1)(a) on preliminary discovery was considered by the Appeal Division of the Supreme Court of Victoria in Sobh v Police Force of Victoria.[7]  In that case, the appellant sought access under the Act to the police brief relating to charges laid against him.  Ashley J described this use of the Act as being “in effect” pre-trial discovery.[8]

The Court concluded that s 31(1)(a) does not necessarily or inevitably prevent disclosure under the Act in a pre-trial discovery situation.[9] According to Brooking J, it is well-known that the Act is used in the furtherance of civil proceedings.  Further, his Honour said that it could not seriously be argued that disclosure of a document under the Act would prejudice the proper administration of the law if its production would confer on a prospective litigant an advantage which they did not have under civil practice and procedure.[10]

Comparison

There are some clear differences between the operation and scope of preliminary discovery and the Act.  Each has its advantages and disadvantages.  Obviously, the Act only applies to agencies and ministers while preliminary discovery can be ordered against anyone.  That said, there are 521 entities that are subject to the Act.  It is worth noting in this context that there is equivalent legislation to the Act in all jurisdictions except the Northern Territory.

A major advantage of preliminary discovery is that the producing party has far fewer opportunities to withhold documents than under the Act.  Privilege is the only ground on which a party may refuse to produce a relevant document which it has been ordered to discover, while under the Act documents can be “exempt” for many reasons of which privilege is only one.

There are other advantages to preliminary discovery:

• The party required to give discovery must produce all documents in its possession, custody and power.  Under the Act, an agency is only required to provide documents in its possession, while ministers are only required to provide documents in their possession and documents which have passed from their possession that they are entitled to access.
• Preliminary discovery requires a party to make an affidavit of documents.  This is not required under the Act.  An affidavit of documents is a sworn statement listing all documents that the producing party has or once had in its possession, custody or power.  It specifically contains a list of privileged documents which the party refuses to produce.  The Act does not require an agency or minister to produce a sworn statement listing all the relevant documents it possesses or has possessed.  When responding to a request, an agency or minister may not necessarily list and describe the documents it refuses to produce.
• Delays in production may be longer under the Act due to the nature of the review process it dictates.  If an agency refuses access to a document, it may be necessary to seek internal review and then further review before VCAT.  This is likely to take more time than a simple application to court which is all that is required if the applicant is not satisfied with the preliminary discovery they have been given. 

Although preliminary discovery has some clear advantages over the Act, it does ask more of the applicant.

The Act has created a simple and inexpensive way to request access to documents held by agencies or ministers.  All an applicant must do is complete a request form and pay the small application fee.  They do not have to reveal their reasons for making a request.

To obtain preliminary discovery, however, an applicant will first have to make an application to the Supreme Court which will require the commencement of a proceeding and the incurring of costs.  It will then have to fulfil the requirements of r 32.05 listed above.  Even if it does fulfil the requirements, the Court still has a discretion to refuse an order for preliminary discovery.  If the order for preliminary discovery is made, the applicant is likely to be ordered to pay the “costs and expenses” of the party making discovery and perhaps even be required to provide security for those costs and expenses.  There is authority that ordinarily costs should be ordered on a solicitor and client basis if a complete stranger is ordered to make preliminary discovery.^[11]  The applicant may recover this outlay at a later date.  However, that would require it to commence a proceeding seeking relief and then obtain a costs order covering that outlay.  It is likely that an applicant would have to succeed in obtaining the relief it sought to receive such a costs order.  An applicant cannot be assured of this, especially if it is so uncertain of the merits of its case that it must resort to preliminary discovery.

An order for preliminary discovery will be limited only to documents “relating to the question of whether the applicant has the right to obtain the relief” sought.  Discovery will not be granted in relation to documents which will allow the applicant to verify that it has a cause of action, flesh out its case, obtain background knowledge or anything else that goes beyond the question of whether it has the right to obtain relief.  There are no such restrictions in relation to a request under the Act.

An application for preliminary discovery will clearly “show the hand” of the applicant.  To fulfil the requirements of r 32.05, the applicant will not only have to reveal that it is contemplating a proceeding, but also explain its cause of action, state what inquiries it has made to obtain information and state what information it already has.  This is not required for a request made under the Act.

Conclusion

Both the Act and preliminary discovery have their advantages and disadvantages.

Preliminary discovery will always be the first port of call for a prospective plaintiff since it applies to anyone.  The Act, however, may be of use if a prospective plaintiff is contemplating a proceeding against the S[1]tate or one of its instrumentalities.  The Act is simple, cheap and does not require an applicant to more or less explain itself.  That said, it gives a producing party significantly more grounds to refuse production than is the case for preliminary discovery.

This article was originally published in (2010) 84(1&2) Law Institute Journal 38.