Berkeley Cleaning Group Pty Ltd v Australain Capital Territory Health Authority

[1985] FCA 113

Re: BERKELEY CLEANING GROUP PTY. LIMITED
And: AUSTRALIAN CAPITAL TERRITORY HEALTH AUTHORITY
No. 363 of 1984
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Morling J.

CATCHWORDS

Practice and Procedure - Discovery - Documents relating to tenders - Balance of competing public interest

HEARING

SYDNEY
#DATE 21:3:1985

ORDER

1. Applicant be given access to such of the documents referred to in the notice of motion as do not consist of documents for which legal professional privilege is claimed.

2. Costs reserved.

JUDGE1

The applicant seeks an order that the first respondent produce for its inspection a number of documents referred to in the list of documents filed by the first respondent on 7 March 1985. The documents which the applicant desires to inspect are listed in the notice of motion. Some of the documents are documents for which legal professional privilege is claimed and counsel for the applicant has stated that his client does not seek to inspect those documents. I shall not itemise those documents in these reasons but if there is any dispute about them, the identification of them can be referred back to the Court.

1. The balance of the documents fall, so I am informed by counsel, into two categories. The first category consists of tenders (and documents supporting them) made to the first applicant by tenderers for the cleaning contract for Woden Valley Hospital. The second category consists of the records of the first respondent's Tender Committee which had the duty of assessing the tenders.

2. I should say at the outset that I can understand why the first respondent desires to claim privilege for both categories of documents since the tenderers might reasonably object to their tenders being produced to the first applicant (which is one of their competitors) except under stringent conditions which will protect their commercial interests. As it is obvious that the Tender Committee's documents may well contain comments on and references to the tenders it is likely that the tenderers would expect the Authority to claim privilege for that class of documents also.

3. However, to say that is not to decide the outcome of this application. I must determine whether, having regard to the considerations to which I shall presently refer, it is proper that the applicant should be given access to all or some of the documents and if so on what terms.

4. I accept, indeed it is not disputed, that there is a public interest in the non-disclosure of documents of the kind for which privilege is claimed. The efficient and effective operation of any tender system must to a large extent depend upon tenderers having an expectation that their tenders will be kept confidential and not disclosed to their competitors. On the other hand it is also clear that there is a public interest that a court charged with the responsibility of deciding a case between litigants should not be denied access to documents which are relevant. It is to be observed in the present case that it is conceded that the documnts for which privilege is claimed are relevant since they have been listed in the Authority's list of documents.

5. Both counsel agree that what was said by Gibbs C.J. in Sankey v Whitlam (1978) 142 C.L.R. 1 on the question of exclusion of evidence as being prejudicial to the public interest is an accurate statement of the law for present purposes. The Chief Justice said (at p.38):
   
   

"The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer ((1968) A.C., at p. 940), as follows:

'There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.'

It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the pub lic interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies."

1. Before proceeding further I should observe that I have not found it necessary to inspect the documents for which privilege is claimed. Counsel for the Authority has informed me that there is nothing in them beyond the type of information that would be expected to be found in them; that is to say details of prices, costs, arrangements regarding employees and the like. I recognize that a tenderer may well desire that such information be kept confidential. I have offered to inspect the documents to ascertain whether they contain more sensitive material but I am assured by counsel for the Authority that that is not the case.

2. I accept that there is a public interest that the documents for which privilege is claimed should not be produced, however, the question to be decided is whether, on balance, having regard to the competing public interest the documents should be produced for inspection.

3. It is clear that the documents should not be produced to the applicant itself, but senior counsel for the applicant disclaims any desire or intention (at least at this stage of the proceedings) to disclose the documents to his client. He has proffered an undertaking to the Court that any documents for which privilege is claimed will be kept confidential to the applicant's counsel and solicitor and will not be permitted to be inspected by any other person. He reserves the right to come back to the Court for a relaxation of that undertaking should circumstances make it necessary to do so.

4. I am of the view that denial of access to the documents for which privilege is claimed will severely inhibit the applicant in the prosecution of its case. Moreover, whilst it is the applicant's interests which are at stake in the case, it is also relevant that there is an element of public interest in the case. The public has an interest in the proper functioning of the Authority's tender system, and I think this circumstance tends to support the applicant's claim that the documents should be made available to its counsel and solicitors.

5. Balancing the two aspects of public interest, referred to by the Chief Justice, I am of opinion that the applicant should be given access to such of the documents as are listed in the notice of motion as do not consist of documents for which legal professional privilege may properly be claimed. I note that counsel for the applicant undertakes to the Court on behalf of his client that the documents produced for inspection will be inspected only by the applicant's counsel and solicitor. I reserve the costs of the notice of motion.