Berih v Homes Victoria (No 3) - [2025] VSC 30

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

GROUP PROCEEDINGS LIST

S ECI 2024 00280

BARRY BERIH	Plaintiff
v
HOMES VICTORIA	Defendant

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 December 2024
DATE OF RULING:	10 February 2025
CASE MAY BE CITED AS:	Berih v Homes Victoria (No 3)
MEDIUM NEUTRAL CITATION:	[2025] VSC 30

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PRACTICE AND PROCEDURE — Call for production of documents — Public interest immunity — Disclosure sought of documents submitted to Cabinet and related preparatory documents — Where public interest immunity applies — Whether public interest in disclosure outweighs public interest in maintaining confidentiality — Documents likely to reveal content of Cabinet committee deliberations — Subject matter of documents is current and controversial — Disclosure would likely have detrimental effect on integrity of Cabinet processes — Evidence Act 2008 (Vic) ss 130 and 131A — Documents immune from disclosure.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	K O’Gorman SC with L Howard, T Farhall and G Cafarella	Inner Melbourne Community Legal
For the Defendants	L Brown SC with J Maxwell	Victorian Government Solicitor

HIS HONOUR:

This proceeding concerns an application by the plaintiff, Barry Berih, to review a decision made by the defendant, Homes Victoria, relating to the demolition and redevelopment of three public housing towers located in Flemington and North Melbourne (‘towers’), as part of a larger Victorian government policy to redevelop 44 high-rise public housing towers (‘public housing towers’) by 2051 (‘redevelopment program’).

The trial of the proceeding commenced before Richards J on 28 October 2024. During cross-examination, the Chief Executive Officer of Homes Victoria, Simon Newport, gave limited evidence referring to a submission by Homes Victoria to a Victorian government Cabinet committee about the redevelopment program (‘Cabinet Submission’) and other related documents. Berih made a call for production of the Cabinet Submission and the other documents identified by Newport in his evidence. Production was resisted by Homes Victoria on the basis of a claim of public interest immunity pursuant to s 130(1) of the Evidence Act 2008 (Vic) (‘Evidence Act’), relying on the circumstances in sub-s (4)(f). Richards J adjourned the trial part heard and referred the question of whether the Cabinet Submission and related documents were immune from production to another Judge of the Court for hearing and determination.

The materials filed by Homes Victoria show that the documents identified by Newport were part of a broader class of documents that relate to the Cabinet Submission (‘Cabinet Submission documents’). The Cabinet Submission documents can be relevantly divided into three categories:

(a) the Cabinet Submission;

(b) documents that Homes Victoria provided to Cabinet committees relevant to the redevelopment program (‘Cabinet documents’); and

(c) documents used by Homes Victoria to prepare submissions to Cabinet committees that were not themselves provided to those committees (‘preparatory documents’).

For the following reasons I conclude that the Cabinet Submission documents are immune from disclosure.

Background

Newport commenced as Chief Executive Officer, Homes Victoria, and Deputy Secretary to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] VSC 30
Decision Date: 10 February 2025

CaseChat Overview and Summary

Berih v Homes Victoria (No 3) involved a legal dispute between the plaintiff, Berih, and Homes Victoria, a statutory body responsible for housing and social housing in Victoria. The plaintiff sought the production of certain documents from the defendant, which were submitted to the Cabinet and related preparatory documents. The case was heard in the Supreme Court of Victoria. The central issue in this case was whether the public interest in the disclosure of the documents sought by the plaintiff outweighed the public interest in maintaining their confidentiality. The plaintiff argued that the documents were crucial to understanding the decision-making process in relation to the current and controversial subject matter of the case, while the defendant maintained that the documents were immune from disclosure due to the application of public interest immunity.

The court considered the provisions of the Evidence Act 2008 (Vic) sections 130 and 131A, which outline the circumstances in which documents may be immune from disclosure. The court held that the documents in question were likely to reveal the content of Cabinet committee deliberations and, therefore, were protected by public interest immunity. The court emphasised that the subject matter of the documents was both current and controversial, and their disclosure could have a detrimental effect on the integrity of Cabinet processes. Furthermore, the court found that the public interest in maintaining the confidentiality of Cabinet deliberations outweighed the public interest in disclosure in this case.

As a result, the court ruled in favour of the defendant, finding that the documents were immune from disclosure under the Evidence Act 2008 (Vic). The court did not order the production of the documents sought by the plaintiff, upholding the public interest immunity claim made by the defendant. The decision in Berih v Homes Victoria (No 3) reinforces the importance of maintaining the confidentiality of Cabinet deliberations and the application of public interest immunity in protecting sensitive government information.

Orders