FEDERAL COURT OF AUSTRALIA Palmer v State of Western Australia (No 2) [2020] FCA 1056 File number: QUD 183 of 2020 Judge: RANGIAH J Date of judgment: 22 July 2020 Catchwords: DISCOVERY – application for discovery and production of documents – delay in applying – whether documents directly relevant – whether order is in interests of justice – application dismissed Date of hearing: 22 July 2020 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 8 Counsel for the Applicants: Mr P Dunning QC with Mr R Scheelings and Mr P Ward Solicitor for the Applicants: Jonathan Shaw Solicitor Counsel for the Respondents: Mr J Thomson SC with Mr J Berson Solicitor for the Respondents: State Solicitor's Office of Western Australia Counsel for Intervener (Solicitor-General of Commonwealth) Mr S Donaghue QC with Mr P Herzfeld Solicitor for Intervener (Solicitor-General of Commonwealth) Australian Government Solicitor Counsel for Intervener (Attorney-General of Queensland) Mr GA Thompson QC with Mr K Blore Solicitor for Intervener (Attorney-General of Queensland) Crown Law ORDERS QUD 183 of 2020 BETWEEN: CLIVE FREDERICK PALMER First Applicant MINERALOGY PTY LTD (ACN 010 582 680) Second Applicant AND: STATE OF WESTERN AUSTRALIA First Respondent CHRISTOPHER JOHN DAWSON Second Respondent JUDGE: RANGIAH J DATE OF ORDER: 22 JULY 2020 THE COURT ORDERS THAT: 1. The interlocutory application filed by the respondents on 22 July 2020 is dismissed. 2. The costs of the interlocutory application are reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (DELIVERED EX TEMPORE AND REVISED) RANGIAH J: 1 The respondents have today filed an interlocutory application seeking discovery and production of documents from the Attorney-General of the Commonwealth. Those documents include any public health or medical advice or papers prepared by or for the Commonwealth Department of Health or the Chief Medical Officer on or after 15 June 2020 that concern or refer to the effectiveness of the closure of State or Territory borders at preventing the spread of COVID-19. 2 I am not satisfied that the documents sought by the respondents are directly relevant to the issues raised by the pleadings or otherwise raised by the Commonwealth in this proceeding. The matters which are directly in issue concern the effectiveness and reasonable justification for the closure of the Western Australian borders by the respondents. The submissions made by the respondents suggest that, at best, the documents sought may be relevant to assumptions made by experts who are to be called by the Commonwealth to give evidence. The views expressed by Commonwealth officers have no other obvious forensic relevance. 3 The respondents have left it until a very late stage to seek discovery. The respondents claim that they only became aware of the relevance of the documents now sought when the Commonwealth filed a document setting out the facts it contends for on 8 July 2020. However, to the extent that the documents may be relevant, they were always relevant to the respondents' defence. They should have been sought from the Commonwealth much earlier. In any event, the respondents delayed for nine days from 8 July 2020 before asking for production of the documents on 17 July 2020. The respondents have provided no adequate explanation for that delay. The delay occurred in the context that the matter had been set down for trial on an expedited basis commencing on 13 July 2020, before the respondents applied for an adjournment. Prior to the adjournment being granted on 9 July 2020, the respondents gave no indication that they were seeking or considering seeking discovery of any documents. I am not satisfied that the respondents have adequately explained why they have delayed until now before making their application. 4 The documents sought under discovery have been narrowed from the very wide request initially made on 17 July 2020. Even so, the request is still a broad one, considering that it is now only two working days before the hearing commences. I am not satisfied that an order for discovery or production in the terms sought is capable of being complied with prior to the trial. In that respect, I have had regard to the affidavit of Danielle Gatehouse, a solicitor acting for the Commonwealth Attorney-General, concerning the time that it will take to locate documents, identify their relevance and consider issues of privilege. 5 Further, the forensic purpose of seeking the documents ultimately seems to be as a possible tool for cross-examination of expert witnesses to be called by the Commonwealth Attorney-General about assumptions they have proceeded under. It may be noted that the respondents intend to call two expert witnesses, one of whom is the Chief Health Officer of Western Australia. The Chief Health Officer is a member of the Australian Health Protection Principal Committee, which appears to hold at least a number of the documents that the respondents seek on discovery. I would have thought that the Chief Health Officer ought to be in a position to address factual matters relevant to the assumptions made that are within his knowledge arising from his membership of that Committee and the documents placed before it. 6 In view of the limited forensic purpose for which the documents seem to be sought, I am not satisfied, taking into account the other matters that I have mentioned, that the interests of justice warrant the making of a discovery order at this late stage. 7 The interlocutory application filed today by the respondents will be dismissed. 8 I will reserve the costs of the application. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate: Dated: 24 July 2020