› Constructive knowledge of department attributed to minister
Practice and procedure
› Discovery
› Further and better discovery refused at late stage
Quick Take
1The attribution of departmental knowledge to a minister under Minister for Immigration, Citizenship and Multicultural Affairs v [name withheld] does not necessarily mean that all documents in a department's possession are 'before' the minister for the purposes of discovery in judicial review proceedings; the court expressed reservations about the concept of documents being 'constructively before' a decision-maker but left the question open.
2Discovery orders in judicial review proceedings requiring production of material 'before' a decision-maker will be construed according to their terms and the context in which they were sought; they will not be retrospectively expanded to encompass a broader concept of constructive possession not raised at the time the orders were made.
3Even where further discovery may be relevant to a ground of review, a court may refuse to make new discovery orders at a late stage of proceedings where doing so would likely result in vacation of hearing dates and the applicant has already been afforded a fair opportunity to obtain discovery.
