Brown v State of Victoria

[2024] VSC 170

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

GROUP PROCEEDINGS LIST

S ECI 2022 03440

JORDAN BROWN	Plaintiff
v
STATE OF VICTORIA	Defendant

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JUDGE:	Goulden AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2024
DATE OF RULING:	12 April 2024
CASE MAY BE CITED AS:	Brown v State of Victoria
MEDIUM NEUTRAL CITATION:	[2024] VSC 170

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PRACTICE AND PROCEDURE — Discovery of documents in a civil proceeding — Redacted documents discovered by the defendant where redaction concealed information the subject of claims of public interest immunity — Evidence Act 2008 (Vic) s 130 —Challenge by plaintiff to public interest immunity claims — Public interest immunity claims upheld.

PRACTICE AND PROCEDURE — Appropriate procedure for considering public interest immunity claims — Receipt of confidential affidavit exhibiting unredacted copies of the documents for inspection by the Court – Plaintiff and his representatives not permitted to inspect the confidential affidavit.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms Forsyth KC and Ms Al-Azzawi	Phi Finney McDonald
For the Defendant	Ms Pekevska	Victorian Government Solicitor’s Office

TABLE OF CONTENTS

Claims of PII....................................................................................................................................... 2

Process for Making the PII Claims................................................................................................. 2

Resolution of the PII Claims............................................................................................................ 6

Annexure............................................................................................................................................ 10

HER HONOUR:

1. The plaintiff brings this group proceeding against the State of Victoria alleging assault and battery by Victoria Police, [1] and contraventions of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the ‘Charter’), in the police response towards demonstrators on 30 October 2019 during a protest outside the International Mining and Resources Conference (‘IMARC’). The plaintiff alleges that he, and others comprising the group, were pushed, crushed, grabbed and sprayed with Oleoresin Capsicum (‘OC’) spray.

   [1]Pursuant to s 74 of the Victoria Police Act2013 (Vic), the State of Victoria is liable for the commission of ‘police torts’ within the meaning of that phrase in s 73 of that Act (with exceptions).

1. The defendant applied redactions to parts of its discovered documents in the proceeding including to conceal information it asserts ought be protected from disclosure by public interest immunity (‘PII’).

1. By his amended summons filed in Court on 28 February 2024, the plaintiff seeks orders, inter alia, to compel the removal of these redactions,[2] and for the defendant to then provide inspection of the unredacted documents.

   [2]Relief is sought in relation to the documents listed in Exhibit OPM-2: 7 to 9 to the affidavit of Olivia Paige McMillan affirmed on 26 February 2024, except for the following documents in that list:  SOV.0037.0001.0002; SOV.0037.0001.0005; SOV.0055.0001.1209 pages [.1210] and [.1211] only.

1. Prior to the hearing, the parties resolved disputes between them concerning the application of redactions on the grounds of relevance and legal professional privilege.  The parties also agreed, in respect of a small number of documents, to the withdrawal of the challenge to the PII claims, or to defer consideration of the challenges until later.  The hearing on 28 February therefore concerned 17 documents partly redacted for PII.[3]

   [3]A list of the redacted documents is attached as an annexure to these reasons, adapted from the list exhibited as OPM-2:7 to 9 to the affidavit of Olivia Paige McMillan affirmed on 26 February 2024. The defendant handed up a further list as an aid at the hearing, which identified three new challenges made by the plaintiff in respect of redactions applied to different pages of documents already the subject of challenge.  In respect of two of those challenges, the defendant was not in a position to adduce evidence at the hearing concerning the reasons for the redactions and so their consideration has been deferred. These three challenges are identified in the annexure following row 17. The documents the subject of the hearing and the provision of the defendant’s list is discussed at Transcript of Proceedings (28 February 2024) 6 – 10.

Claims of PII

1. At common law, public interest immunity ‘…protects from compulsory disclosure documents or information where disclosure would be injurious to the public interest’.[4] The privilege is also housed in s 130 of the Evidence Act 2008 (Vic) (the ‘Evidence Act’).  Where the EvidenceAct applies, the decision to direct the exclusion of the evidence must be made pursuant to s 130, albeit the interpretation of the section is informed by the common law.[5] In Victoria, section 131A of the Evidence Act extends the operation of s 130 to pre-trial discovery.[6] Accordingly, in this case, the Court must determine the defendant’s PII claims in accordance with s 130 of the Evidence Act. 

   [4]Ryan v State of Victoria [2015] VSCA 353 at [53] (Tate JA) (‘Ryan’). See also Sankey v Whitlam (1978) 142 CLR 1, 38 (Gibbs ACJ).

   [5]Ryan at [100].

   [6]Evidence Act s 131A(2).

Process for Making the PII Claims

1. The defendant relies on a single set of open submissions.  It also relies upon an open affidavit sworn by Superintendent Craig Thornton on 19 February 2024.

1. The defendant asked the Court to receive the confidential affidavit of Superintendent Craig Thornton (the ‘Confidential Affidavit’), also sworn on 19 February 2024, in support of its PII claims.  In that affidavit, Superintendent Thornton deposes as to the concern of the defendant to protect specific details about police methodology as to crowd control and public order policing, addressing the currency and sensitivity of that information.  Little more can be said openly about its contents without tending to reveal the information sought to be protected from disclosure.  With three exceptions, the affidavit also exhibits the documents the defendant has redacted, but without the redactions applied so that the Court can view the redacted information.  Three additional documents were handed up in Court at the hearing, also with the redactions lifted so that the Court could observe the concealed information.  The three additional documents all have redactions applied to conceal information of the same type and for the same reasons as are deposed to in the Confidential Affidavit. 

1. The defendant seeks that the Confidential Affidavit be kept confidential, that the court inspect the documents the subject of its claims as exhibited to the Confidential Affidavit and that the Confidential Affidavit not be provided to the plaintiff and his legal representatives.  The defendant relied on the use of similar procedures in other cases,[7] including the civil case of Ryan v State of Victoria (‘Ryan’).[8]

   [7]Ahmet v Chief Commissioner of Police [2014] VSCA 265 at [32] (Nettle JA and Sloss AJA), where the Court of Appeal stated that the first instance judge ought to have inspected the documents; R v Andrews (2010) 107 SASR 471 where the judge inspected the unredacted documents and conducted part of the hearing in the absence of the defendant and the defendant’s counsel; R v Benbrika (Ruling No. 3) [2007] VSC 283, where the Court examined a confidential affidavit; R v Westbrook [2020] VSC 472, hearing conducted in closed court; Madafferi v The Queen (2021) 287 A Crim R 380, where the court obtained the assistance of amici curiae and conducted hearings in open and closed court.

   [8]Reference at n 4 above.

1. The plaintiff objected to the receipt by the Court of the Confidential Affidavit.  The plaintiff submitted in its written submissions and orally that the confidentiality of that affidavit had not been properly established by Superintendent Thornton in his open affidavit.  The plaintiff submitted that this undermined his ability to assist the Court as a properly informed contradictor and to understand and test the PII claims. The plaintiff submitted that he is unable to fairly question, cross-examine or otherwise test the evidence of Superintendent Thornton.

1. The plaintiff submitted also that if the Confidential Affidavit was to be received then it would be appropriate in the circumstances of this case to order it be provided to the plaintiff’s representatives, but that it not otherwise be inspected or copied.  The plaintiff submits that such an order may also be the subject of a non-disclosure undertaking, and, if necessary, the hearing regarding the redacted documents could be conducted in closed-court.  The plaintiff submitted that to do otherwise and to receive information not disclosed to other parties is a ‘serious step’,[9] reserved for exceptional circumstances where there are no other reasonably available alternatives.

   [9]Transcript of Proceedings (28 February 2024) 11.25, 24.10.

1. During the hearing I ruled that the Court would receive the Confidential Affidavit and that the Confidential Affidavit would not be provided to the plaintiff or his representatives.  The reasons for that ruling follow.

1. The plaintiff relied on the decision of Beach JA in the case of Goussis v The King (‘Goussis’).[10] In that case, his Honour permitted the release of a confidential affidavit and confidential submissions to the legal representatives for the applicant.  His Honour said:

The authorities dealing with the question of how claims of confidence, public interest immunity and the like are to be dealt with in the course of a proceeding show that sometimes it is appropriate for the Court to resolve the issues without a contradictor; sometimes amicus curiae are appointed; and sometimes the other party’s legal representatives, on appropriate undertaking as to confidentiality, are permitted to see the material. The appropriate course to be taken requires a proper examination of the specific facts of the case, all of its circumstances, the importance of the issue, the likelihood of any claimed risk eventuating if information is provided to a third party and the seriousness of the consequences should any such risk eventuate.[11]

[10][2022] VSCA 255 (‘Goussis’).

[11]Ibid [23] (emphasis in original).

1. Goussis makes clear that the appropriate procedure to adopt will depend on the specific facts and circumstances of each case.  That circumstance specific analysis has resulted in different approaches being taken in cases in this Court since the Goussis decision.[12] The relevant factors will include whether the proceeding is a civil or criminal one, whether it is in the trial or appellate jurisdiction, the seriousness of the issues in dispute and their complexity. In a civil proceeding, as part of the assessment, the Court will consider the overarching purpose, and in all cases, the Court will also consider timeliness of determination and the allocation of judicial resources. Selecting the procedure that most suits the specific facts and circumstances of the case also aligns with the Court’s role under s 130(3) of the Evidence Act, to regulate how it informs itself of matters relevant to the giving of a direction under s 130.

   [12]In Barbaro v The King [2024] VSCA 11, the applicant sought to have his legal representatives act as contradictor and to receive the confidential material on provision of an undertaking. The Court conducted its own assessment of the documents and did not permit disclosure of the confidential material to the applicant’s representatives. A Goussis-type order was made in Arico v The King [2023] VSCA 132, and then upon the remitter following the appeal (which was consented to), the determination proceeded by inspection of a representative sample and without disclosure of the confidential material to the applicant, see Arico v The King [2023] VSCA 268.

1. The circumstances of the Goussis case differ significantly from this one.  Goussis involved a criminal appeal, and so his Honour was less troubled by the risk of inadvertent disclosure in the ‘heat of the battle’[13] by counsel bound by a non-disclosure undertaking.  There was a comparatively large volume of material before the Court, and the issue for determination was described by his Honour as being:

…as serious as an issue can be — involving as it does the question of whether a person currently sentenced to life imprisonment was wrongly convicted because of a failure of the Crown’s duty of disclosure.[14]

Given the seriousness and complexity of the issues, his Honour apprehended that, absent a contradictor with full access to the material, there was an unsatisfactory risk that the Court’s analysis would be superficial and the applicant may be denied access to material the significance of which was not apparent to the Court or anyone other than those representing him and responsible for developing his case on appeal.

[13]Jackson v Wells (1985) 5 FCR 296 at 307-8 (Wilcox J).

[14]Goussis [22].

1. The issues raised for determination in this proceeding are relatively straightforward and, its being a civil case, they are not as serious as they were in the Goussis case. Accordingly, the importance of the concealed information to the proceeding can more easily be assessed by the Court without assistance from a contradictor.  There are also comparatively fewer redactions — there are mostly single sentence or partial sentence redactions across a total of approximately 30 pages within 17 documents. It is not onerous or time consuming for the Court to review such a small volume of material.  Additionally, as this is an interlocutory application made in advance of trial, considerations regarding the risk of inadvertent disclosure or of inhibiting counsel[15] must necessarily feature more prominently in the analysis than they did in Goussis.

   [15]As recognised in cases such as Jackson v Wells (1985) 5 FCR 296 at 307-8 (Wilcox J); Commonwealth v Northern Land Council (1993) 176 CLR 604, 638 (Toohey J); Seymour v Price [1998] FCA 1224 at 10 (French, O’Conner and North JJ).

1. In the circumstances of this case as described above, and having regard to the overarching purpose, I determined that the appropriate procedure to adopt in assessing the defendant’s claims of PII was to receive the Confidential Affidavit, to order that it not be disclosed to the plaintiff or his representatives, and by the Court conducting its own examination of the documents assisted by the Confidential Affidavit.

Resolution of the PII Claims

1. Given the limits imposed on him by restricting his access to the defendant’s material, the plaintiff was confined in his submissions to elucidating the issues in the proceeding to which the concealed information may be relevant, and to guiding the Court on the principles informing the application of s 130 of the Evidence Act, in particular the balancing exercise to be undertaken under s 130(5).

1. The Evidence Act requires, as an initial hurdle, that the information relates to ‘matters of state’. Section 130(1) of the Evidence Act provides that:

(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

1. Section 130(4) of the Evidence Act sets out certain types of governmental information that qualify as ‘matters of state’. The defendant relies on s 130(4)(f) in respect of all of its PII claims, being information which if adduced would ‘prejudice the proper functioning of the government of the Commonwealth or a State’. The defendant points to Ryan[16] as authority for the proposition that this provision covers methodology or tactical information of law enforcement agencies.  The plaintiff accepts that police methodologies and tactics can qualify as matters of state, but he urges me to consider whether each piece of concealed information qualifies as such.

   [16]At [122] (Tate JA).

1. I am satisfied, having reviewed the 17 documents, that the information concealed relates to Victoria Police methodologies and tactics, that it is current (or has an ongoing significance) and that it is sensitive in the way described.  I accept the evidence of Superintendent Thornton, given in his open affidavit, that the information if revealed could reduce or impair the effectiveness of the various police methodologies and tactics, particularly future police responses to protest situations.  If revealed, the effectiveness of these methodologies and tactics could be subverted and undermined, exposing members of the public to risk.  This is the public interest that is sought to be protected by resisting disclosure.  The matters deposed to in the Confidential Affidavit provide further support for this. Whilst the plaintiff understandably questions how certain of the information can possibly relate to matters of state when what is redacted appears from its context to be relatively innocuous, the Court has evidence before it in the Confidential Affidavit which I am satisfied explains why that information, particularly when understood in the context of other redacted information, so qualifies. 

1. Having established the redacted information relates to matters of state for the purposes of the Evidence Act, the balancing exercise must be undertaken whereby the public interest in admitting the information into evidence is weighed against the public interest in maintaining its confidentiality. Matters the court must take into account in the balancing exercise are specifically captured by s 130(5) of the Evidence Act.[17]

   [17]Self-evidently, not every listed matter applies in this civil case. Also, there was no allegation of prior publication.

1. The plaintiff alleges assault and battery of the plaintiff and group members by Victoria Police officers at the IMARC event on 30 October 2019.  The plaintiff seeks damages and declarations, as well as declarations in relation to breaches of the Charter.  The plaintiff submitted that information concerning the police methodologies and tactics available to be used, and actually used, at the protest is central to the plaintiff’s case in terms of assessing whether those tactics and force were unreasonable and disproportionate.  The plaintiff submitted the concealed information should be weighed as important to the proceeding in the balancing exercise if it would assist in determining:

(a)   what tactical options were available to police during the incident the subject of the Statement of Claim;

(b)  whether police officers in fact complied with police methodology when using force against the protesters;

(c)   what orders and directions were given to police about the subject events;

(d)  whether police officers acted under direction or exercised independent judgment when using force against the protesters;

(e)   the assessment of whether the force used was reasonable and proportionate, bearing in mind reasonably available alternatives.

The plaintiff’s counsel directed me to the relevant parts of the parties’ pleadings to further explain the nature of the case and the centrality and importance of these issues to the proceeding to assist with my consideration of the documents and the balancing exercise.

1. Having reviewed the documents at issue and relying on the pleadings and the plaintiff’s submissions summarised above to identify the issues in the proceeding to which the redacted information may have significance, and having regard to the nature and subject matter of the proceeding, I have reached the view that the redacted information is either not relevant or, if relevant, then is of nominal or no importance to the determination of this proceeding concerning the alleged assault and battery, and breaches of the Charter rights, of the protesters who are group members.  This is the case notwithstanding that the redacted information is sometimes located in a document which otherwise contains information that is or is likely to be highly relevant to the proceeding, for example, the OC Manual, [18] or the PORT tactical plan that is relied upon in the Defence.[19] 

   [18]SOV.0035.0001.0001

   [19]SOV.0029.0001.0178 and SOV.0029.0001.0204.  See Defence dated 12 May 2023 [15]–[16].

1. It is not enough to shift the balance in favour of disclosure that the information might be ‘useful’ or might ‘help paint a picture’ — it must have significance to the resolution of issues in dispute.[20]  Preventing the disclosure of the redacted information will not lead to the creation of any material gaps in the picture the plaintiff seeks to build about the protest, that is about how the police response was planned, mobilised and directed, and the reasonableness or proportionality of it, in advancing his case, nor, in turn, will it lead to any gaps in the Court’s understanding of the plaintiff’s case.  On the other hand, the disclosure of the information would alert others to the methods and tactics used by Victoria Police, which could undermine the effectiveness of those techniques and endanger the public.  As in Ryan, in this case because the redacted information is not relevant or is of no or nominal importance, the balancing exercise goes all one way.  Having regard to the potential impact of disclosure — being to impair or prejudice police operations in response to public protests — the public interest in preserving confidentiality overwhelms the countervailing public interest in disclosure.

   [20]This is consistent with the finding in Ryan that redacted portions of tactical documents were found to be irrelevant or unimportant to the proceeding. See Ryan [140]ff.

1. The plaintiff submitted that, in appropriate cases, there were other ways to protect the confidentiality of the redacted information other than by directing non-disclosure under s 130. Given the balancing exercise is so overwhelmingly in favour of non-disclosure, I do not consider that it is appropriate to permit even limited disclosure and restrict publication as might be contemplated in appropriate matters under s 130(5)(d), nor to rely on the protections which arise from the parties’ Harman obligations or any express undertakings that might be given.

1. In accordance with these reasons, I will not make the orders sought in the plaintiff’s amended Summons in relation to the 17 documents identified in the annexure.

1. I will dismiss the plaintiff’s amended Summons.  Although the defendant sought its costs by its submissions and although it has had success in resisting the plaintiff’s application, given the nature of the claims and the inability of the plaintiff to obtain information about the reasons for the claims, it was not unreasonable for the plaintiff to seek to test the PII claims by application to the Court and so I will order that each party bears its own costs.

Annexure

Documents upon which PII redactions have been made by the defendant

No.	Document identifier and page numbers containing redactions disclosure of which is sought by plaintiff	Defendant’s position
1	SOV.0001.0001.0015 Lifting of PII redactions in pages [.0022]-[.0029] is sought	PII claims maintained.
2	SOV.0027.0001.0036 Lifting of PII redaction on page [.0036] is sought	PII claims maintained.
3	SOV.0029.0001.0178 Lifting of PII redactions on pages [.0182], [.0183] and [.0185] is sought	PII claims maintained.
4	SOV.0029.0001.0204 Lifting of PII redactions on pages [.0208], [.0209] and [.0211] is sought.
5	SOV.0031.0013.0027 Lifting of PII redactions on page [.0028] is sought	PII claims maintained.
6	SOV.0031.0013.0078 Lifting of PII redactions on page [.0078] is sought	PII claims maintained.
7	SOV.0031.0013.0085 Lifting of PII redactions on page [.0085] is sought	PII claims maintained.
8	SOV.0031.0012.0086 Lifting of PII redactions on page [.0086] is sought	PII claims maintained.
9	SOV.0031.0015.0004 Lifting of PII redactions on page [.0006] is sought re times	PII claims maintained.
10	SOV.0035.0001.0001 Lifting of PII redactions on page [0032] is sought	PII claims maintained by the State over [.0032] only.
11	SOV.0037.0001.0002 – consideration deferred by agreement between parties
12	SOV.0037.0001.0005 – consideration deferred by agreement between parties
13	SOV.0051.0006.0001 Lifting of PII redactions on page [.0001] is sought	Yes. PII claim maintained.
14	SOV.0051.0007.0001 Lifting of PII redactions on page [.0001] is sought	PII claim maintained.
15	SOV.0055.0001.1209 Lifting of all PII redactions is sought	PII claims are maintained by the State on page 1 only.
16	SOV.0055.0001.6551 Lifting of all PII redactions is sought	PII claims in respect of shift times are maintained.
17	SOV.0055.0001.6757 Lifting of all PII redactions sought	All PII claims (which only relate to shift times are maintained).
In addition to the lifting of PII redactions sought in relation to SOV.0029.0001.0178 (document 4 above in this table), lifting of PII redactions over page [.0196] is sought	PII claim is maintained by the State. Parties attempting to resolve.
In addition to the lifting of PII redactions sought in relation to SOV.0029.0001.0204 (document 5 above in this table), lifting of PII redactions on page [.0206] is sought	PII claim is maintained
In addition to the lifting of PII redactions sought in relation to SOV.0035.0001.0001 (document 12 above in this table), lifting of PII redactions on pages [.0014] and [.0015] is sought	PII claim is maintained by the State. Parties attempting to resolve.

SCHEDULE OF PARTIES

S ECI 2022 03440
BETWEEN:
JORDAN BROWN	Plaintiff
- v -
STATE OF VICTORIA	Defendant