Commonwealth of Australia v Northern Land Council

[1991] HCATrans 330

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M52 of 1991

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Applicant

and

NORTHERN LAND COUNCIL

First Respondent

and

ENERGY RESOURCES OF AUSTRALIA

Second Respondent

Application for special leave

to appeal

Copyright in the High Court of Australia 1 15/11/91

MASON CJ
BRENNAN J

DAWSON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 NOVEMBER 1991, AT 11.55 AM

MR D. GRAHAM, QC:  May it please the Court, I appear with my

learned friend, MR A. ROBERTSON, for the applicant.

(instructed by the Australian Government Solicitor)

MR R.W. BLOWE$:  May it please the Court, I appear for the

first respondent, the Northern Land Council.

(instructed by B.I. Midena, Solicitor for the

Northern Land Council)

MASON CJ: There is a certificate from the Deputy Registrar

of the Court to the effect that she has received a
letter dated 1 October 1991 from the solicitors for

the second respondent advising that the second

respondent does not wish to appear at the hearing.

Now, Mr Graham, can you identify for us what

you say are the questions that arise for
determination?

MR GRAHAM:  Yes, Your Honour, I can do that and I think I

can do it briefly. If I can put it this way to the

Court: there are four matters that we would seek

to advance to this Court which we would say would

justify the grant of special leave because they are matters of importance and they are matters in which

there is, in our submission, sufficient doubt as to
the correctness of the decision of the Full Federal

Court.

The grounds of appeal raise some other matters besides those which we intended to ventilate before

this Court this morning but the four I am about to

go to are the ones that we would say have the

characteristics of importance and raising questions

of doubt.

At the forefront, the Commonwealth would seek

to submit that the decisions of this Court in

Sankey v Whitlam and Alister v Reg establish that where documents have been shown to be entitled to

public interest immunity, the applicant for

inspection of those documents is not entitled to
ask the Court to undertake the so-called balancing

exercise if he shows no more than that the

documents relate to the matters in question, in

what I will call for the sake of brevity, the

Peruvian Guano sense. The citation of that case

appears in the application book at page 120.

The Commonwealth submits that there must be

shown some concrete ground for believing that the
documents contain material substantially useful to

the applicant.

MASON CJ: "Substantially" - what was the word?

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MR GRAHAM Useful. Your Honour, I do not quite know how to

develop this but perhaps I can say this. We say

that in Alister four members of this Court referred

with approval to the speeches in the House of Lords

in Burmah Oil and the Air Canada cases which, in

our submission, would establish a test along the

lines that the applicant must show more than mere

Peruvian Guano or adjectival relevance. The

applicant must show a substantial ground for

believing that the documents contain material

substantially useful.

MASON CJ:  Now, that is the first question.

MR GRAHAM:  That is the first point, Your Honour. I will

not give Your Honours the citations.

MASON CJ:  No, we are not concerned with that. We just want

an identification of the questions.

MR GRAHAM:  No, I accept that, Your Honour. The second

point, Your Honour, is this:  we would seek to

submit that the application or operation of the

principles concerning public interest immunity do

not vary from one forum in Australia to another

depending upon the particular terminology of the

procedural rules of the forum. The point is that

we say the immunities of the Crown or the

government in this respect are matters of substance

and they do not fall to be determined as the

Full Federal Court approached the matter by a

minute examination and comparison of the rules of

different courts.

In any event, we would submit that the rules

of the Federal Court to which Their Honours paid so

much attention, particularly Order 15 rule 15 did

not differ materially from the rule of court which was central to the decisions of the House of Lords

in Burmah Oil and Air Canada.

The third point that we would raise before the

Court as a ground for the grant of special leave is

that the Full Federal Court either did or may have

approached the case on the basis that it was doing

no more than reviewing an exercise of discretion by

the primary judge. That appears in the application

book at pages 155 to 156 although it is not

altogether clear that that was, indeed,

Their Honours' approach. But the point that we

would submit is that in a case of this kind raising

an issue of public interest immunity, the task of the appellate court is that of a court exercising

full appellate jurisdiction. It is not a case

where the appellate court is merely reviewing a

discretion as it would be in a taxation of costs or

a division of matrimonial property, matters of that

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kind, following House v Rand Australian Coal and

Shale-type principles.

The fourth point that we would seek to raise

before the Court as a ground for the grant of

special leave is this: His Honour

Justice Jenkinson, with the approval of all members of the Full Court, seems to have done something in

the nature of delegating part of the task of
determining whether the public interest immunity of
the Commonwealth should be breached to the legal

advisers of the applicant for inspection, that is

to say, the opposite party to the claimant for

immunity. We say there is a fundamental

misconception in what Justice Jenkinson did and

what the Full Court approved.

The question for the court was whether the

immunity should stand or should be breached. The

effect of the order for limited inspection breached

the immunity and we say it is not possible to
justify a decision to breach the immunity by

undertaking an investigation to see whether it

should be breached. So, those are our four points

for special leave, Your Honours, but we do not wish

to state that that is our case exhaustively because

there are other points in the grounds of appeal.

MASON CJ:  No, no, all I have asked you to do is to identify

the principles.

MR GRAHAM:  Yes, and those are the points that we say

warrant the grant of special leave.

MASON CJ: Yes. Mr Graham, at this stage we will hear from

Mr Blowes.

MR GRAHAM: If the Court pleases.

MASON CJ: Yes, Mr Blowes?

MR BLOWES: If the Court pleases. Your Honours, in my

submission, the special leave application ought to

be refused for the following four reasons and I

largely respond to my friend's points.

The first point, Your Honours, is that the

decision of the primary judge, in this case

Mr Justice Jenkinson, in relation to which the special leave is now sought, was an exercise of discretion on a point of practice and procedure,

namely, an early stage of determining the public

interest immunity question. It was described by

the Full Court as a short step towards a final

decision on the question of disclosure of the

Cabinet notebooks in question.

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The second point is, in my submission, that

the application for special leave is premature in

complaining that the court below has failed to

apply the decisions of this Court in Sankey v

Whitlam and Alister v Reg for the reasons that the

question of general disclosure of the notebooks has not been determined by the decision which is sought

to be appealed from.

Thirdly, it will be my submission that the

exercise of discretion to permit the limited

confidential and preliminary inspection by the

Northern Land Council's legal advisers raises no

question of general principle sufficient to justify

the grant of special leave. The decision, in my

submission, turned on the admitted relevance of the documents by inclusion in the list of documents and upon the noted complexity of the evidentiary issues in the case and the nature and volume of the

material which was under consideration.	I think,
Your Honours, it was common ground before

Mr Justice Jenkinson and the Full Court that the

reading of the material in question, namely, the
notebooks, occupied some 160 hours or thereabouts

in the life of a senior public servant.

The fourth point, Your Honours: the decision of the Full Court and the decision of

Mr Justice Jenkinson, in my submission, did not

disclose any error in granting the confidential and

limited inspection.

In dealing with this application, I would ask

the Court to note the following: firstly, the

limited nature of the disclosure which was ordered.

That is referred to in the application book at

page 70 where the Full Court - sorry, page 70 is

the order of Mr Justice Jenkinson. Your Honours

will note that it is an order occupying some three

pages and orders 2 to 5, in my submission, indicate

that the nature of the disclosure permitted would

not enable the legal advisers of the Northern Land

Council to, for example, read the documents in

court or otherwise make use of the documents in the

proceedings other than to know of them and perhaps

come back to assist the court in determining the

ultimate question of whether the public interest

immunity claim should or should not succeed. That

was in Mr Justice Jenkinson's decision, the reasons

why he only permitted that limited nature of the

disclosure.

I would ask Your Honours to note that neither

Mr Justice Jenkinson nor the Full Court inspected

the material or were invited to inspect the

material by the Crown. Your Honours ought also to

note that before Mr Justice Jenkinson and the

15/11/91

Full Court were a number of documents which were minutes of the Cabinet decisions to which the

Cabinet notebooks related and I would ask

Your Honours also to note that this case is now in

its sixth year of proceedings or close to its

seventh - beginning its seventh year of proceedings

and we are still yet to complete the discovery and inspection, and that is not meant as any criticism

of any party or any court, it is simply to

indicate, Your Honours, that there is a massive

amount of material and delay. The time involved in

the proceedings is already significant.

Your Honours, I would concede that the

subject-matter of this application, namely, the
disclosure of Cabinet notebooks is a matter of

great public importance. What I would not concede

and what, in my submission, is not of such

importance is, in the circumstances of this case,
the preliminary granting of limited and

confidential disclosure for the purpose of

assisting the Court to determine the ultimate

question of disclosure.

If I may return just briefly to the four

points: that the decision appealed from was

interlocutory was acknowledged, in my submission,

by the Full Court at page 101 - - -

MASON CJ: Well, there is no problem about that. I mean, it

obviously is.

MR BLOWES: If Your Honours please. It was, as the

Full Court said, merely a short step which was

justified in this case where the material was

voluminous and the evidentiary issues complex. The

Full Court referred to that at page 144 of the

application book. In my submission, it is

ordinarily inappropriate for this Court to grant

leave from an interlocutory order and, in my

submission, this case - and notwithstanding that

Cabinet notebooks are involved - is no exception

because of the limited extent of disclosure which

was ordered.

Point two, the question of prematurity of the

matter coming before this Court: the effect of the
decision appealed from is that only limited

disclosure will occur, general disclosure remains
outstanding and remains under the complete control

of the court. There can be no further disclosure

beyond that which has been permitted without

reference back to the judge of the Federal Court.

Your Honours, if inspection is ultimately

allowed to proceed and any entry of interest found

in those notebooks, it will yet have to be the

6   15/11/91

subject of an assessment of the public interest

immunity claim by the Federal Court and the subject

of a further order before full disclosure to the

parties.

The balancing process and the substantive

application talked of - Sankey v Whitlam and

Alister's case - would only then occur, in my

submission, and then would occur in the light of

circumstances in relation to documents about which

there was particular interest and in the light of

circumstances which could be more fully known to

the court.

In my submission, Your Honours, it is likely

that this matter would come back before the Court
after any further order extending terms of

disclosure and that this Court would at that stage

be in a better position to determine finally the
principles involved in the immunity claim question,

particularly in relation to the Cabinet notebooks

which are the subject of this application.

Your Honours, if special leave was granted,

would find yourselves in this dilemma: it would be

difficult to allow the appeal without
expressly or by clear implication raising a class

of documents which cannot be questioned even

without the inspection of the Court and, in my

submission, that would be going contrary to the

decision in Sankey v Whitlam and, in my submission,

this Court could not dismiss the appeal and at the

same time achieve some finality on the question of

the ultimate production of the Cabinet notebooks.

If Your Honours, on appeal, were to dismiss the motion for production made by

Mr Justice Jenkinson, then Your Honours may have to

do so in the absence of inspection of the documents

and in the absence of the assistance which Mr Justice Jenkinson anticipates receiving

subsequent to the inspection by counsel.

BRENNAN J: But that is the very point, is it not, that is

being raised for consideration? If, on the

material thus far available, you do not go beyond the Peruvian Guano test, then there should not be

any further incursion upon the public interest

immunity.

MR BLOWES: That is so, Your Honour, but in my submission,

Mr Justice Jenkinson found that a more substantial

test was satisfied. He said that there was a

strong probability that the documents will contain

material which will help the case of the Northern

Land Council or hinder the case of the Commonwealth

and he did so after having access to the final

15/11/91

documents created as a result of the various

Cabinet meetings which are the subject of the

Cabinet notebooks.

BRENNAN J:  Would you just show us the passage in the

application book?

MR BLOWES:  Your Honours, if Your Honours turn to pages 57

and 58 of the application book. Page 57 at

line 45, His Honour said:

The probability is in my opinion strong

that the entries in the notebooks relating to

deliberations about the negotiation and the

making of the impugned agreement will afford

information by means of which the case of the
applicant for rescission of the agreement as
unconscientious may be advanced or the case of

the Commonwealth against the grant of that

remedy may be damaged.

And then at page 60, line 39, he says:

In case it be held that those conclusions

are erroneous, it may be useful to say that I

would in any event have ordered inspection of

those entries which recorded any assertion as

to what had before the agreement was made

passed, whether orally or in written form,
between representatives of the parties to the

impugned agreement -

in other words, he was saying that, in any event,

he would have ordered production of records of

historical facts.

Your Honours, in my submission, special leave

is not warranted in those circumstances and, in my
submission, the granting of special leave and the

conduct of an appeal would only further increase

costs at this stage and add to the delays in the

litigation whereas, in my submission, it is quite

likely that the matter may be more fully agitated,

if at all, upon a later occasion.

Your Honours, turning to point 3, that there

is no question of general principle. As I have

said, in my submission, the decision of the primary

judge turned on the particular circumstances of the

proceedings in that he was not invited to and did

not inspect; that there was a large volume of

material, namely, 113 notebooks; there were

evidentiary complexities as can be seen from his
recitation of the issues and his allusion to there

being in the possession of the various parties a

large number of documents which may be correlated

with the material in the notebooks which would give

15/11/91

some insight as to their forensic usefulness in any

trial and in his finding as a matter of fact.	He
made the finding which I have just alluded to,

namely, as to the strong possibility of there being

certain entries in the notebook.

As to point 4, briefly and finally,

Your Honours, in my submission, there was no error

of principle disclosed in the decisions of

Mr Justice Jenkinson or the Full Court, in this,

that it is clear that those decisions were seen by

Mr Justice Jenkinson and the Full Court as being

interlocutory in the sense that the disclosure

permitted was very narrow and any further

disclosure was to be the subject of further

inquiry. With that in mind, Your Honours, the

discussions by the court below as to the

application of Sankey v Whitlam and the other

cases, in my submission, were obiter because the

decision did not go that far. The decision was

only seen as going to the limited disclosure for
the purpose of assistance being provided to the

court on the ultimate question.

In my submission, so far as these decisions

went, neither the decision of Mr Justice Jenkinson

nor the decision of the Full Court disclosed any

error of principle that would justify the granting

of special leave at this stage.

MASON CJ:  Thank you, Mr Blowes. Mr Graham, with reference

to the first question that you identify, what do

you say about the two passages to which Mr Blowes

pointed, the first at page 57 and 58, the second at

page 60, which he suggests constitute a finding by

the judge that the material would be substantially

useful to the plaintiff?

MR GRAHAM:  Your Honour, this matter was debated at some

length before Their Honours in the Full Federal

Court but, for a reason which I will seek to

demonstrate, Their Honours did not find it

necessary to deal with that part of the argument.

If I could ask Your Honours to go to page 58

of the application book, starting at line 20,

His Honour said:

It will, I hope, be apparent from what I

have written that the entries will in my

opinion afford information of the required

kind by what they do not contain as well as by

what they do contain.

We pause to say there, we challenge that

proposition on the basis that there simply was no

material before His Honour which would have enabled

9

him to form a view as to what these documents did

not contain. His Honour went on:

For that reason, the order will be for

inspection of all entries concerning events

which occurred before the impugned agreement

was made and which relate to the agreement or

to negotiation for it.

And the next sentence is critical:

And for that reason, and because the material

in the court file, much less the evidence

adduced for and against the motion, does not

equip me to weigh the value to the applicant

of the entries, I have not myself inspected

them.

The argument before the Full Federal Court:	we
made considerable amount of that sentence and

observed that it seemed to be inconsistent or, at

least, very difficult to square with the passages

that my learned friend relies on at page 57 in

particular. His Honour seems to concede that there

was an inadequacy in the material to enable him to
weigh the value of the material to the applicant so

that one reaches the point that His Honour seems to

be saying that, "There is no concrete ground to

indicate to me that these documents will advance in

a substantial way the case of the applicant."

MASON CJ: Yes. So, what His Honour has said is intuitive

rather than anything else?

MR GRAHAM:  We would say that, Your Honour, with respect.

We would say it goes so far as to say, as we did to

the Full Federal Court, that it seems to have been

speculative and we would say that very little can

be placed upon the passages my learned friend

refers to, having regard to the other passages to

which we refer.	He does not have the finding of
facts in his favour that he would need.

BRENNAN J:  Does that involve this Court then in determining

that question before we get to your first question?

MR GRAHAM:  Your Honour, no, because we would be seeking

simply to contend that the decision of the

Full Federal Court was wrong and if we succeeded on

that, the position would be reached that it was

insufficient to show mere Peruvian Guano relevance

and the decision of the Full Federal Court would

therefore have to be set aside. It would have to

go back to that court, on one view, to resolve this

point which was not resolved because

Their Honours -

NLC 10

MASON CJ: Yes, but let us be plain about this: you would

not be asking this Court to look at the

materials with a view to coming to a conclusion

about that?

MR GRAHAM:  No, Your Honour.

BRENNAN J: But you would be asking this Court to come to a

conclusion on the materials before

Mr Justice Jenkinson as to whether something more

than the Peruvian Guano test had been established?

MR GRAHAM:  We would not, Your Honour, no. We would say

that was a matter properly to be investigated in

the Full Federal Court which, having chosen a less strict criterion, did not embark upon the question

that has now been exposed for discussion and so the

position might be that this Court would take the

view that that matter should be investigated by the

Full Federal Court which elected not to because of

the different approach which it adopted. But we

would certainly not be asking this Court to

undertake it.

If there are no other matters in reply,

Your Honour, I do not seek to address the Court

further.

MASON CJ:  Now, Mr Graham, the Court is minded to grant

special leave to appeal but what I want to ask you

is this, and it relates to the proposed notice of

appeal: there is an extensive statement of grounds

there. Do any of those grounds go beyond the four

questions that you identified?

MR GRAHAM: Yes, I think two of them do, Your Honour.

MASON CJ:	Now, would you identify those for us?
MR GRAHAM:	Ground (i), Your Honour, is a ground which

the learned judges in the Full Federal Court which	raises the argument which was dealt with first by
was the argument that Cabinet notebooks were in a
class by themselves and that they enjoyed an
immunity which was - - -

MASON CJ:  We would not be concerned about the inclusion of

that in the notice of appeal, Mr Graham.

MR GRAHAM: This Court would not?

MASON CJ:  No, we would not be concerned about that. That

could be retained.

MR GRAHAM:  Your Honour, I am grateful for that indication

from the Court and those instructing me would be as

well. I think that the other matter, Your Honour,

11   15/11/91

was ground (k) which is linked in part with out

argument about delegation and perhaps ground (j) is

something that may stand as an argument on its own

further down the course of argument, when one looks

more closely -

MASON CJ: Well, (j) is within your questions.

MR GRAHAM:  In one sense, Your Honour, it is although it

might be capable of being developed rather further

than I foreshadowed.

MASON CJ: Yes, possibly. Mr Graham, I should indicate to

you, just in case closer inspection of these

grounds may perhaps indicate that they are

trespassing further than we would intend by
granting special leave to appeal, that we are only

concerned to grant special leave to appeal so that we can entertain questions of principle. We would

not, under any circumstances, intend to bring about

a situation in which this Court should engage in

some evaluative process itself.

MR GRAHAM:  Your Honour, we would not seek to present our

case on that footing. This case is far removed

from Alister's case and it is - - -

MASON CJ: Yes. Well, on that understanding, the Court will

grant special leave to appeal.

MR GRAHAM: If the Court pleases.

AT 12.27 PM THE MATTER WAS ADJOURNED SINE DIE

NLC 12 15/11/91