Construction, Forestry, Mining and Energy Union v Hamberger (Employment Advocate)

[1999] FCA 1358

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Hamberger (Employment Advocate) [1999] FCA 1358

Construction, Forestry, Mining and Energy Union v Jonathan Hamberger (Employment Advocate) [1999] FCA 1301, referred to

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v JONATHAN HAMBERGER (in his capacity as the EMPLOYMENT ADVOCATE)

V 259 of 1999

MARSHALL J
MELBOURNE
8 OCTOBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 259 of 1999

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant
AND:	JONATHAN HAMBERGER (in his capacity as the EMPLOYMENT ADVOCATE) Respondent
JUDGE:	MARSHALL J
DATE OF ORDER:	8 OCTOBER 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The respondent, on or before 29 October 1999, permit the applicant to inspect the copy letter referred to in Part 2 of Schedule 1 of the respondent’s list of documents.

2.The filing of any application for leave to appeal from the judgment given this day in this matter operate as a stay upon the operation of paragraph 1 above, subject to any further order.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 259 OF 1999

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant
AND:	JONATHAN HAMBERGER (in his capacity as the EMPLOYMENT ADVOCATE) Respondent

JUDGE:	MARSHALL J
DATE:	8 OCTOBER 1999
PLACE:	MELBOURNE

REASONS FOR INTERLOCUTORY JUDGMENT

1. In ex-tempore reasons for judgment delivered on 6 September 1999 the Court required the respondent, Mr Hamberger, to produce to it a copy of a letter (“the letter”) in respect of which a claim for public interest immunity had been made by the Commonwealth of Australia. See Construction, Forestry, Mining and Energy Union v Jonathan Hamberger (Employment Advocate) [1999] FCA 1301.

2. By letter dated 23 September 1999 the solicitors for Mr Hamberger sent a copy of the letter to the Court. The Court inspected the letter on 4 October 1999. Inspection of the letter confirmed the view of the Court, expressed in its 6 September 1999 judgment, that the letter does not record Cabinet deliberations and is a document prepared outside Cabinet.

3. After inspecting the letter the Court engaged in a process of balancing the public interest in the proper administration of justice, requiring that a fair trial be given with all relevant and material evidence, with the competing public interest in not disclosing the contents of Cabinet documents.

1. As indicated in the judgment of 6 September 1999 the Court was unable to properly engage in that balancing exercise without the benefit of reading the letter. After reading the letter and in the circumstances of the substantive matter before it, the Court has formed the view that the public interest in the proper administration of justice outweighs the competing public interest in not disclosing the contents of a Cabinet document, albeit one which does not record  Cabinet deliberations.

2. It is inappropriate to give expanded reasons for the Court’s exercise of judgment in undertaking the balancing process. To do so may result in the divulging of the contents of the letter to the public at large in circumstances where the Court is bound to give the Commonwealth the opportunity to seek leave to appeal from the Court’s judgment on this aspect of the proceeding. See Sankey v Whitlam (1978) 142 CLR 1, per Gibbs ACJ, at 43. Suffice to say the Court has formed the view that the letter is an important document which the applicant Union may seek to have before the Court as part of the evidence to ensure a fair disposition of the proceeding based on all relevant and material evidence.

3. In the circumstances the Court makes the following order:

   1.The respondent, on or before 29 October 1999, permit the applicant to inspect the copy letter referred to in Part 2 of Schedule 1 of the respondent’s list of documents.

   2.The filing of any application for leave to appeal from the judgment given this day in this matter operate as a stay upon the operation of paragraph 1 above, subject to any further order.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             8 October 1999

Solicitors for the Applicant:	Slater & Gordon
Solicitor for the Commonwealth:	Australian Government Solicitor
Solicitors for the Respondent:	Freehill Hollingdale and Page
Date of provision of letter to the Court:	23 September 1999
Date of Judgment:	8 October 1999