Canwest Global Communications Corporation v Australian Broadcasting Authority

[1997] FCA 1601

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES AND VICTORIAN     )
DISTRICT REGISTRIES               )   
  )
GENERAL DIVISION                   )

BETWEEN:No NG322 & NG 384 of 1997

CANWEST GLOBAL
  COMMUNICATIONS   CORPORATION    

Applicant

No VG183 of 1997
  DONHOLKEN PTY LTD

Applicant

No VG185 of 1997
  SELLI PTY LTD

Applicant

AND:AUSTRALIAN BROADCASTING AUTHORITY

Respondent

CORAM:     HILL J
PLACE:     SYDNEY

DATE:10 JULY 1997

REASONS FOR JUDGMENT

Some days ago in this matter, I made an order for discovery against the Australian Broadcasting Authority ("the ABA")  which was challenged in appeal to the Full Court and  subsequently dismissed. The Authority has now given discovery  but claims certain documents, being those now described in an exhibit to an affidavit of Mr Webb, be not made available for inspection on the grounds of public interest immunity.

In support of the application, Mr Webb who is the chairman of

the ABA deposes that the material to which privilege is sought is material which came from an informant through a solicitor.  It deposes to a conversation in which the solicitor indicated that his client wished to remain unidentified.  He says that it was always his understanding, as a result of statements by the solicitor during that conversation, that the information provided was to be provided on a confidential basis.

Evidence is also given from Ms Manser, who is a senior executive officer employed by the ABA, holding the position of Director of Policy and Communications.  She confirms that she too had had discussions either by telephone or in a meeting with the informant or the informant's solicitor that the identity of the informant and the substance of the information which that person provided would not be disclosed.  She says that perusal of the documents contained in the confidential exhibit would reveal the identity of that informant.  She says that one of the functions of the ABA is to ensure that the requirements which Parliament has laid down to be complied
with in the broadcasting legislation are met.

For that purpose the ABA has an investigatory role and it relies not merely upon the fact that persons supply information to it which is commercially sensitive, but also upon informants.  She says that if persons could not produce information on a confidential basis, the ABA capacity to carry out its functions would be impaired.  She says, and it seems to me to be quite self‑evident, that although the ABA has power to compel production of information or to require the giving of evidence, it could only exercise that power if it knew about the possible existence of documents or sources of information.  It says also that the ABA's powers of compulsion could not be enforced beyond the jurisdiction.  Ms Manser further says that it is her view that disclosure would be contrary to the public interest, and would be likely to have the effect of threatening or impeding the supply of information to the ABA.

Finally she says that the material in question has little or no relevance to the matters presently before the Court, as the information provided pre‑dated the events which are the subject of the ABA's present report.  No challenge was made to the evidence of Mr Webb or Ms Manser.  Neither were required for cross‑examination.  There is no reason for me to, in any way, question the material in their affidavits.

With the consent of the parties I have perused the material in the confidential exhibit.  It is, I suppose, material which is discoverable, having regard to the usual rule, that a party must discover any material which might tend to detract from its case or enhance the case of the other party.  That having been said, I have formed the view that to say the least, the material is of very peripheral relevance. 

There is no doubt that there is a public interest in an investigatory agency, such as the ABA, receiving confidential information from informants on the basis that the name of that informant and the information to the extent that it might identify that informant, not be revealed. Many cases have pointed to the significance and confidentiality of informants not merely in the area of criminal investigations, where the significance is obvious, but also in civil matters involving bodies, such as the Corporate Affairs Commission, the Trade Practices Commission or similar bodies, having an investigatory function.  Indeed, the Commissioner of Taxation could probably not function without information received from informants.

I have been referred to a number of cases where the significance of informants to the public interest has been made clear.  I need only refer to the case of DE v National Society for the Prevention of Cruelty to Children [1879] AC 171, where the principle was applied to the National Society for the Prevention of Cruelty to Children, by analogy to the law relating to police informers; the decision of the New South Wales Court of Appeal in Smith v Arthur Stanley Smith [1986] ACrR 308 at 311 to 312; Cain v Glass (No 2) (1985) 3 NSWLR 230 at 249 per McHugh J.

These last two cases being in the context, however, of criminal law.  Reference may also be made particularly to the judgment of Sheppard J in Trade Practices Commission v Queensland Aggregates Pty Ltd (No 2) (1981) 51 FLR 364 at 371. Generally the discussion in Zarro v Australian Securities Commission (1992) 36 FCR 40 at 46, where Lockhart J discussed the principle of public interest immunity in the context of the Australian Securities Commission and, more recently, in Somerville v Australian Securities Commission (1995) 60 FCR 319, see especially the judgment of Lindgren J at 353.

In the last mentioned case the parties agreed that the name of an informant should be kept confidential.  Although it is clear that there is a public interest in ensuring that the name of informants be not disclosed nor that information be disclosed which might indirectly reveal that name, the public interest immunity is not absolute nor is it suggested that it is. The true principle, as the cases make clear, is that the Court must balance against the public interest to which I have already referred, the interest that justice be done in litigation, particularly what harm would be done by the failure on the part of the authority in the present case, to produce the documents and whether the administration of justice would be frustrated or impaired if the documents were in fact withheld.

It is for the Court to undertake that process and decide which aspect, the public interest in immunity or the public interest in the administration of justice should, in a particular case, prevail.  As I have already said I have examined the documents and in the circumstances have little difficulty in the conclusion which flows from that balancing process.  The documents, in my view, are of such peripheral relevance that the failure to disclose them will have no, or virtually no, impact upon the conduct of the present proceedings and, for that reason, I would propose to uphold the claim of the ABA to public interest immunity. 

I return the documents upon undertakings being given that they be held until the present proceedings ultimately conclude and order that the costs of each of the motions before me be the  respondent's costs of the proceedings.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment of the Honourable Justice Hill

Associate:

Date:

Counsel and Solicitors for      J Griffiths instructed by

the Applicant in               Clayton Utz
NG 322 and NG 384 of 1997

Counsel and Solicitors for      P Tate instructed by

the Applicant in               Arthur Robinson Hedderwicks
VG 183 of 1997

Counsel and Solicitors for      P J Cosgrave instructed by

the Applicant in               Arnold Bloch Leibler
VG 185 of 1997

Counsel and Solicitors for A Robertson SC instructed by the
the Respondent:           Australian Government Solicitor