Corruption and Crime Commission of Western Australia v Allen - [2012] WASCA 242

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA -v- ALLEN [2012] WASCA 242

CORAM: MARTIN CJ
NEWNES JA
MURPHY JA

HEARD: 22 AUGUST 2012

DELIVERED : 27 NOVEMBER 2012

FILE NO/S: CACV 157 of 2011

BETWEEN: CORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA
Appellant
AND
MICHAEL ROBERT ALLEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :CORBOY J
Citation  :ALLEN -v- CORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA [2011] WASC 327
File No  :CIV 1561 of 2011

Catchwords:

Administrative law - Corruption and Crime Commission Act 2003 (WA), s 152 - Meaning of 'official information' - Application by respondent for pre-action discovery under O 26A r 4 - Whether official information may be inspected - Whether order for discovery should be made

Legislation:

Corruption and Crime Commission Act 2003 (WA), s 152
Rules of the Supreme Court 1971 (WA), O 26A r 4

Result:

Appeal allowed
Application for preaction discovery dismissed

Category: B

Representation:

Counsel:

Appellant: Ms P E Cahill SC
Respondent: Mr S Penglis

Solicitors:

Appellant: Corruption and Crime Commission of Western Australia
Respondent: Freehills

Case(s) referred to in judgment(s):

Allen v Corruption and Crime Commission of Western Australia [2011] WASC 327
Waller v Waller [2009] WASCA 61

JUDGMENT OF THE COURT: This is an appeal against an order of Corboy J that the appellant provide pre‑action discovery of certain documents sought by the respondent, pursuant to O 26A r 4 of the Rules of the Supreme Court 1971(WA).
The appeal turns, in this context, on the effect of s 152 of the Corruption and Crime Commission Act 2003 (WA) (the Act). That provision, in substance, prohibits the disclosure of 'official information', as defined in the Act. The appellant says that the decision of the primary judge to order pre‑action discovery was based on an erroneous view of the effect of s 152. It contends that when s 152 is properly construed it is evident that the documents which the appellant was ordered to discover are 'official information' and may not be disclosed. No purpose would therefore be served by the order for discovery. We should say that it was not contended (correctly in our view) that the appellant is immune from litigation but simply that the documents sought by the respondent are not discoverable.
As an order under O 26A r 4 is interlocutory, the appellant requires leave to appeal: Waller v Waller [2009] WASCA 61 [8], [119].
For the reasons which follow, we would grant leave to appeal and allow the appeal.

Background

The appeal arises out of an investigation by the appellant into allegations of misconduct by public officers in connection with a project known as the 'Smiths Beach Development Project' (the Project) in the south‑west of the state. The respondent was at the time a senior officer in the Department of Planning and Infrastructure (DPI).
Following the investigation, the appellant published a report (Investigation Report), which was tabled in Parliament on 5 October 2007. In it, the appellant found that the respondent had agreed to a request by a person associated with the developers, Mr Brian Burke, that a departmental officer, Ms Barbara Pedersen, write the DPI's report on the Project rather than another departmental officer, Ms Stephanie Clegg. The appellant expressed the following opinion:
[The respondent's] conduct in August 2006, in agreeing to appoint the departmental officer preferred by Mr (Brian) Burke to write the [DPI] … report on Smiths Beach in preference to other officers, involved a performance of duties that was not impartial. The conduct could constitute a serious breach of the Public Sector Code of Ethics in that there was a failure to act with integrity in the performance of official duties. This conduct therefore constitutes misconduct pursuant to sub‑paragraphs 4(d)(ii) and (vi) of the … Act.
The appellant recommended that the Director‑General of the DPI give consideration to disciplining the respondent for lack of integrity.
A subsequent investigation by a delegate of the Director‑General of the DPI, pursuant to s 81(2) of the Public Sector Management Act 1994 (WA), concluded that the respondent had 'no case to answer'.
On 8 March 2008, the Parliamentary Inspector reported to Parliament on the appellant's investigation of the respondent's conduct and the appellant's findings. The Parliamentary Inspector was critical of both the investigation and the findings. He considered that the Investigation Report did not provide adequate reasons for the finding nor did it properly identify the evidence on which the appellant relied to make the finding. In his report the Parliamentary Inspector recounted an interview with the investigator who had conducted the investigation, in which the investigator had said that he had not made any recommendation concerning the respondent which accorded with the appellant's finding. The Parliamentary Inspector also expressed the view that in addition to Ms Pedersen the appellant should at least have interviewed Ms Clegg, Mr Singleton (the supervisor of Ms Pedersen and Ms Clegg), and another officer of the DPI, Ms Cherrie. Only Ms Pedersen had been interviewed and in the Parliamentary Inspector's opinion her evidence did not support, but rather negated, the findings of misconduct against the respondent.
In a later report to Parliament, the appellant rejected the Parliamentary Inspector's criticisms.
The respondent applied under O 26A r 4 for pre‑action discovery by the appellant. Order 26A r 4 applies where a person who may have a cause of action against another person wants to commence proceedings against that person but, after reasonable enquiries, has not been able to obtain sufficient information to enable a decision to be made as to whether or not to commence proceedings. If there are reasonable grounds for believing that the potential defendant has or has had in its possession documents that may assist in making the decision, the potential plaintiff may apply for an order for discovery of those documents.
The respondent sought an order that the appellant give discovery of:
All emails, memoranda, records of meeting or other documents:
(a)relating to the decision to interview Ms Barbara Pedersen;
(b)between 7 May 2007 and 5 October 2007 referring to the Pedersen interview;
(c)referring to whether or not to interview Ms Stephanie Clegg, Mr Jim Singleton and/or Ms Tara Cherrie.
In an affidavit in support of the application, the respondent said he considered that he may have a cause of action against the appellant but he did not have sufficient information to make a decision whether to commence proceedings, particularly in light of s 219 and s 221 of the Act which effectively required him to prove that the appellant had not acted in good faith. The causes of action contemplated by the respondent were breach of a duty of care owed to him by the appellant and/or misfeasance in public office.
The application was opposed by the appellant. The appellant filed (among others) an affidavit of Ms Wilby, who is employed by the appellant as a senior lawyer. In her affidavit, Ms Wilby referred to searches which had been carried out by Commission staff to identify documents answering the description of those sought by the respondent. Ms Wilby said that a limited number of documents had been identified and they fell into the following categories (some categories having more than one document):
(a)a document created by Commission officers as a record of steps taken in the original investigation;
(b)a document created by Commission officers recording information provided to them by third parties in carrying out the original investigation;
(c)a document provided to the Commission after the original investigation by a third party who was an Australian legal practitioner; and
(d)a document created by the Commissioner after the original investigation and sent to a third party.
Ms Wilby expressed the belief that all of the identified documents were 'official information' under s 152 of the Act.
Ms Wilby said that a search of the appellant's email system had not been conducted as it would be 'an extremely cumbersome and onerous task'. That was because all emails were archived off‑site on a monthly basis and a search of the emails would involve retrieving each monthly archive, restoring the data, loading the archive file into Outlook and then carrying out the search. Several hours may be required for each of the approximately 60 months that would need to be searched. Ms Wilby expressed the belief that any emails which might be identified would also be 'official information' under the Act.
The primary judge held that the respondent was entitled to pre‑action discovery, but subject to the restrictions imposed by s 152 of the Act: Allen v Corruption and Crime Commission of Western Australia [2011] WASC 327. Final orders were made on 12 December 2011. In substance, his Honour's orders required the appellant, 'subject to the prohibition on the disclosure of official information imposed by section 152 of the [Act]' to file and serve a list, verified by affidavit, of the following documents 'relating to the appellant's report on the investigation of alleged public sector misconduct linked to Smith's Beach Development':
All emails, memoranda, records of meeting or other documents:
(a)relating to the decision to interview Ms Barbara Pedersen;
(b)relating to the Pedersen interview;
(c)referring to whether or not to interview Ms Stephanie Clegg, Mr Jim Singleton and/or Ms Tara Cherrie.
Following the filing of the appellant's appeal notice, Corboy J ordered that the appellant's obligation to comply with the orders be stayed until the appeal was determined.
Before turning to the reasons for decision of the primary judge, it is convenient to describe the relevant statutory framework.

The relevant statutory regime

The main purposes of the Act are to combat and reduce the incidence of organised crime, and to improve the integrity of, and to reduce the incidence of misconduct in, the public sector: s 7A. Section 7B provides that those purposes are to be achieved primarily by establishing the appellant, which is:
•to be able to authorise the use of investigative powers not ordinarily available to the police service to investigate particular cases of organised crime, and
•to help public authorities to deal effectively and appropriately with misconduct by increasing their capacity to do so while retaining to itself power to investigate cases of misconduct, particularly serious misconduct.
The appellant is constituted as a body corporate: s 8(2). The functions of the appellant are set out in s 17 to s 19 of the Act. Those functions include helping to prevent misconduct (s 17) and ensuring that an allegation of, or information involving, misconduct is appropriately dealt with (s 18). In performing the latter function, the appellant may, among other things, investigate the matter itself, refer it to another authority, or take action in cooperation with another authority. That may be done whether or not an allegation of misconduct has been made. The appellant may assemble evidence and furnish it to other agencies for the purpose of prosecutions. The appellant may also consult, cooperate and exchange information with other bodies, including the Commissioner of the Australian Federal Police or of the police force of another state or territory, the CEO of the Australian Crime Commission, the Commissioner of Taxation, and the Director‑General of the Australian Security Intelligence Organisation.
As might be expected having regard to the nature of the appellant's functions and powers, the Act contains stringent confidentiality provisions. Section 151 prohibits the disclosure of 'restricted matter', except as authorised or required under the Act. The definition of 'restricted matter' includes any evidence given before the appellant, the contents of any document produced to or seized by the appellant, any information which might enable a person who has been or is to be examined before the appellant to be identified or located, and the fact that a person has been or may be about to be examined before the appellant: s 151(1).
The critical provision of the Act for the purposes of this appeal is s 152, dealing with restrictions on the disclosure of 'official information'. It is as follows:
(1)In this section -
Commission lawyer means -
(a)a legal practitioner appointed to assist the Commission; and
(b)a person who assists, or performs services for or on behalf of a legal practitioner appointed to assist the Commission in the performance of the legal practitioner's duties assisting the Commission;
court includes a tribunal, authority or person having power to require the production of documents or the answering of questions;
official information, in relation to a relevant person, means information acquired by the person by reason of, or in the course of, the performance of the person's functions under this Act;
produce includes permit access to;
relevant person means a person who is or was -
(a)an officer of the Commission; or
(b)a Commission lawyer.
(2)Subject to subsections (3), (4) and (6) a relevant person must not, either directly or indirectly -
(a)make a record of any official information; or
(b)disclose any official information.
Penalty: Imprisonment for 3 years and a fine of $60 000.
(3)Despite subsection (2), a relevant person may make a record of official information -
(a)under or for the purposes of this Act;
(b)otherwise in connection with the performance of the person's functions under this Act.
(4)Despite subsection (2), official information may be disclosed by a relevant person if it is disclosed -
(a)under or for the purposes of this Act;
(b)for the purposes of a prosecution or disciplinary action instituted as a result of an investigation conducted by the Commission or the Parliamentary Inspector under this Act or any other prosecutions or disciplinary action in relation to misconduct;
(c)when the Commission has certified that disclosure is necessary in the public interest;
(d)to either House of Parliament or to the Standing Committee;
(e)to any prescribed authority or person; or
(f)otherwise in connection with the performance of the person's functions under this Act.
(5) A relevant person is not authorised to disclose operational information under subsection (4)(d) or (e) unless the Commission has certified under subsection (4)(c) that disclosure is necessary in the public interest.
(6)Despite subsection (2), a relevant person may disclose the fact that an allegation has been received or initiated by the Commission or the details of an allegation.
(7)A relevant person cannot be required to produce or disclose any official information in or to any court except for the purposes of a prosecution or disciplinary action instituted as a result of an investigation conducted by the Commission or the Parliamentary Inspector under this Act.
(8)This section also applies to the Commission as if references to official information were references to all information acquired by the Commission by reason of, or in the course of, the performance of the Commission's functions under this Act.
In the Act, 'disclose' means to 'publish in any way' or to 'divulge or communicate to any person in any way': s 3.
Section 154 provides (relevantly) that s 152(2) applies despite any law or rule of law under which a person may be required to produce or disclose any matter of information.
Under s 153(3), a person to whom official information is disclosed under s 152(4) for the purpose of a prosecution or disciplinary action must not make any record of the information or disclose it for any other purpose, and the person cannot be required to produce or disclose the information to any court except for the purpose of the prosecution or disciplinary action.
Under s 224, the appellant is required to cause records to be kept of any investigation.

The reasons of the primary judge

The primary judge observed that s 152 reflected a clear statutory purpose of strictly controlling the disclosure of 'official information', a concept which, having regard to the nature of the appellant's functions, is extremely wide [53]. His Honour noted, however, that the concept of 'official information' was not unlimited. It focused, not on the source of the information, but on the acquisition of information, although the acquisition is not confined to acquisition from a source external to the appellant but includes the acquisition of information by one officer of the appellant from another officer [55].
The primary judge also noted that s 152(8) extended the operation of s 152 to the appellant itself as though it was a 'relevant person', so that the restriction in s 152(7) applied to the appellant [60].
His Honour turned to the question whether the production of a list of documents would itself involve an unauthorised disclosure of official information regardless of whether the documents listed contained official information. That is, would the acquisition of information about the documents obtained by an officer of the appellant in the course of preparing the list of documents mean that the information became 'official information' by reason of being acquired by that officer? His Honour concluded that it would not, as the information would not have been acquired by the officer 'by reason of, or in the course of, the performance of the person's functions under [the] Act', the preparation of such a list not being one of the functions specified in div 2, pt 2 of the Act [65].
The primary judge also rejected a submission by the appellant that a list which described the documents in a way which complied with O 26A r 4 would necessarily involve partial disclosure of 'official information'. His Honour considered that any difficulty of disclosure of official information arising simply from listing the documents could be overcome by making the appellant's obligation under any order for pre‑action discovery subject to s 152 of the Act [67].
His Honour concluded that the respondent had established that he may have a cause of action against the appellant, that the appellant had documents of the kind sought, that the appellant was susceptible to an order for discovery, and that an order for pre‑action discovery could be formulated which accommodated the restrictions in s 152 of the Act. His Honour noted that the appellant accepted that it was, subject to its non‑disclosure obligations, amenable to an order for discovery [74]. The primary judge then turned to the question whether there would be any utility in making an order under O 26A r 4 in light of Ms Wilby's evidence.
We should note that in doing so the primary judge addressed in detail only the first category of documents identified by Ms Wilby; that is, 'a document created by Commission officers as a record of steps taken in the original investigation'. His Honour did not express any view as to whether any documents falling within any of the second to fourth categories were 'official information', observing, however, that most documents acquired by the appellant from a third party would constitute 'official information'. He also noted the respondent's concession that the third category would constitute official information [84].
In relation to the first category of documents, the primary judge concluded that a document which merely recorded a decision by a relevant person could not, in itself, contain official information, even if the decision was made in the course of the officer performing a function under the Act. His Honour said:
That is because the document would not record information that was acquired by the officer. A document created by a CCC officer (or, for example, an entry in a document such as an officer's investigation running sheet) that recorded, 'I have decided not to interview X' does not record any information acquired by the CCC officer who made the decision and the record. Conversely, a document made by a CCC officer that recorded, 'I have decided not to interview X because Y told me that X knew nothing about the Project' clearly contains information that has been acquired by the officer and is accordingly, official information.
Official information may comprise information acquired by a CCC officer from another officer or by reading a document created by another officer. That possibility creates what might be regarded as an anomaly. The CCC officer who made a decision to, for example, interview a witness would not disclose official information by revealing that the decision had been made (as the officer would not disclose any information that had been acquired). However, another CCC officer who, in the course of performing a function under the CCC Act, was informed of the decision or learnt of it by reading a document would acquire information that was official information. That officer could not disclose information about the decision. The CCC contended that in the same way, it acquired information from a document recording a decision even if the document did not contain official information.
I do not propose to express a final view on that contention in these reasons. It was not fully argued and I think that it is only necessary to express a preliminary view for the purpose of disposing of the application for the present [76] ‑ [78].

On the question whether the appellant itself 'acquires' information from a document which records a decision made by an officer of the appellant in the course of an investigation, his Honour found it unnecessary to reach a final view. He considered, however, it was sufficiently arguable that the appellant did not 'acquire' the information (in the sense 'acquire' is used in s 152) that a decision requiring the appellant to give pre‑action discovery would not inevitably be futile. The point could be argued more fully if it arose [81].
The primary judge considered it was also relevant to the exercise of his discretion that the appellant had disclosed through Ms Wilby's affidavit that it held documents within the categories nominated by the respondent and, in addition, that a considerable amount of information concerning the investigation relating to the respondent had been publicly disclosed in the reports to Parliament [83].
In relation to a submission by the appellant that an order for pre‑action discovery in respect of the emails would be oppressive, the primary judge concluded that, based on the estimate of the time required to search all of the emails, the time involved was disproportionate, but that it ought to be possible to achieve an appropriate balance between the respondent's purpose in seeking pre‑action discovery and the burden of compliance [86]. His Honour considered that it might be necessary to manage the process of discovery in stages to achieve that outcome [87].

The grounds of appeal

It is unnecessary to set out the grounds of appeal in full. In substance, they were that the primary judge erred in law in exercising his discretion to order pre‑action discovery in that he:
(1)erroneously concluded (at [76]) that a document merely recording a decision made by an officer of the appellant in the course of performing a function under the Act does not contain 'official information' within the meaning of s 152(1) of the Act because the document does not record information that was acquired by that officer;
(2)erroneously concluded (at [81]) that it was sufficiently arguable that the appellant does not acquire information from a document that records a decision that has been made by an officer of the appellant in the course of an investigation to interview or not interview a person to conclude that an order requiring the appellant to give pre‑action discovery would not be inevitably inutile; and
(3)erroneously concluded (at [63] ‑ [65]) that the act of producing a list of documents held by the appellant would not involve the disclosure or recording of 'official information' within the meaning of s 152(1) of the Act, even where a document or documents itemised in the list contained such official information.

The disposition of the appeal

Grounds 1 and 2

On the hearing of the appeal, counsel for the respondent conceded that the application under O 26A r 4 turned on the documents in the first category of documents identified by Ms Wilby (ts 41). It is therefore unnecessary to consider any other category.
As we have mentioned, the primary judge found that a document which simply records a decision made by an officer of the appellant in the course of performing a function under the Act does not contain 'official information'. That followed from his Honour's earlier conclusion as to the meaning of 'official information'. In reaching the latter conclusion, his Honour had emphasised that information was not 'official information' by reason of its nature or source but only became such if it was 'acquired' by an officer of the appellant by reason of, or in the course of, the performance of the officer's functions under the Act. Information was acquired by an officer when that officer came into possession of it, such as receiving a document from a third party, or gained it through their own efforts or action, such as reading or making enquiries about a document [56].
That led the primary judge to find that a record made by an officer simply of a decision that he or she had made in relation to an investigation was not official information because it did not record information 'acquired' by the officer. His Honour accepted that the position would be different if the document also recorded information that the officer had acquired, such as information the officer had acquired which had led to the decision. But simply a record of the officer's own decision or unaided thoughts would not constitute official information. In so concluding, his Honour must be taken to have proceeded on the basis that the document did not indirectly or implicitly disclose information which the officer had acquired. On a practical level, that may not be easily determined in many instances, but that can be passed over for present purposes. We will assume that such documents exist (a matter about which we should interpose there does not seem to have been any direct evidence) and that they do not involve indirect disclosure.
The result, as his Honour recognised, was to give rise to the anomalous situation that whilst such a document would not constitute official information in the hands of its maker, if another officer of the appellant in the course of performing a function under the Act was informed of the information or learned of it by reading the document, it would be official information in that person's hands. In short, the officer who was the originator of the information would not be bound by s 152 in respect of the information but any other officer who learned of it in the course of performing a function under the Act would be bound. His Honour concluded that that was simply the unavoidable outcome of the way in which the Act had been framed.
It is, however, a result which would appear to be contrary to the obvious purpose of s 152, namely, to protect from disclosure any information in the possession of the appellant relating to, among other things, investigations in which it is involved. In our opinion, an intention to limit the operation of s 152 in such a manner would have to be manifest in clear language. Contrary to the view of the primary judge, we do not consider it is a result which is compelled by the language of the Act. We consider, with respect, that his Honour's reasoning failed to take sufficient account of the position of the appellant itself under s 152. When the position of the appellant is taken into account, it is clear, in our view, that such documents constitute official information.
In s 152, 'acquire' bears its ordinary meaning of (relevantly) 'to come into possession of': Macquarie Dictionary (5th ed, 2009). Whilst information can only be acquired by the appellant by or through its officers, it is apparent from s 152(8) that the Act recognises a distinction between information acquired by an officer of the appellant and information acquired by the appellant. While it may be correct to say that a record simply of an officer's own decision is not a record of information which the officer has 'acquired', when that information is recorded by the officer in the course of his or her duties under the Act it comes into the possession of, and is thereby acquired, by the appellant. Such information is acquired by the appellant by reason of, or in the course of, the performance of its functions under the Act and accordingly becomes 'official information' by virtue of s 152(8). It becomes part of the record of the investigation which the appellant is required to keep under s 224 of the Act.
When viewed in that way the anomaly to which the primary judge referred does not arise. Such a document cannot be disclosed because it constitutes official information. That is a result entirely consistent with the nature of the functions of the appellant and the need for the confidentiality of its records in relation to the investigations it carries out.
That raises the issue of the utility of an order for pre‑action discovery. It is implicit in his Honour's decision that he found Ms Wilby was, or arguably was, proceeding on an incorrect view of the effect of s 152 of the Act in stating that documents in the first category in par 18 of her affidavit constituted 'official information' and he found that documents simply recording an officer's own decision were not, or arguably were not, protected from disclosure to the respondent. As mentioned above, counsel for the respondent conceded (correctly in our view) that the order for pre‑action discovery depended upon that finding. The primary judge did not reject the evidence of Ms Wilby that the other categories of documents answering the description of those sought by the respondent fell within s 152. It is not suggested by the respondent that there are further categories of documents which fall within the description of those he seeks.
It follows from our conclusion that documents in the first category would constitute 'official information', that no utility would be served by an order for pre‑action discovery. In light of Ms Wilby's evidence, there are no documents which would be available for inspection by the respondent as a result of such an order. Whilst the appellant has not conducted a search of emails, there is no reason to believe that such a search would be likely to produce any documents which the respondent would be entitled to inspect and every reason to believe to the contrary. In those circumstances, no point would be served in undertaking it, and given the magnitude of the task involved in searching the emails it would be oppressive to require it to be undertaken.

Ground 3

In light of the conclusion we have reached on the first two grounds of appeal, this ground does not arise and it is unnecessary to determine it.

Conclusion

We would:
(1)grant leave to appeal;
(2)allow the appeal;
(3)set aside the order of the primary judge; and
(4)dismiss the respondent's application for pre‑action discovery.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA -v- ALLEN [2012] WASCA 242 (S)

CORAM: MARTIN CJ
NEWNES JA
MURPHY JA

HEARD: ON THE PAPERS

DELIVERED : 13 DECEMBER 2012