CPB Contractors Pty Ltd and Hansen Yuncken Pty Ltd v State of SA
[2024] SASCA 130
•14 November 2024
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
CPB CONTRACTORS PTY LTD AND HANSEN YUNCKEN PTY LTD v STATE OF SA
[2024] SASCA 130
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice David)
14 November 2024
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FURTHER EVIDENCE - OTHER MATTERS
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION OF DOCUMENTS - GROUNDS FOR RESISTING PRODUCTION - PRIVILEGE - INSPECTION BY COURT
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION OF DOCUMENTS - GROUNDS FOR RESISTING PRODUCTION - PRIVILEGE - OTHER GROUNDS
This is an appeal against a decision by which claims of public interest immunity concerning what were described as “Cabinet documents” were upheld and the application to inspect those documents was dismissed.
The appellant (the Builder), the respondent (the State) and the interested party (Celsus) are parties to private arbitral proceedings concerning the project to design and construct the new Royal Adelaide Hospital in South Australia (nRAH) (the ACICA Arbitrations). Celsus took no part in the appeal.
This appeal is only concerned with the Builder’s challenge to the State’s claims to public interest immunity made over less than 100 documents. The hearings before the primary judge were facilitated by a combination of “open” affidavits and “closed” or confidential affidavits. Much of the material has been filed on a “party access basis” given the confidential nature of the private arbitral proceedings.
The evidence relied on by the State in support of its claims included affidavit evidence from the Acting Executive Director, Cabinet Office, in the Department of the Premier and Cabinet, who had reviewed the documents. The documents the subject of the public interest immunity claims were said by the witness to fall into three sub-categories:
Category A1: Documents that were Cabinet documents (whether in final or draft form or were an attachment or which repeated the content contained within a Cabinet document).
Category A2: Documents revealing Cabinet decisions, deliberations or discussions.
Category A3: Documents which related to the preparation of Cabinet documents, and which would reveal the content of Cabinet documents.
The primary judge treated the claims as “class claims” and inspected only a handful of the documents, explaining that he did so because of their “temporal proximity” to the issues arising in the ACICA Arbitrations, and because the subject-matter conveyed by their titles suggested that they may contain information which “would materially assist the prosecution of [the Builder’s] claims”.
The Builder challenged the adequacy of the State’s evidence and the Categories it relied on. The Builder contended that as the disputed documents were relevant, the primary judge should have inspected them. The Builder challenged only certain aspects of the “first stage” of the process for determining a public interest immunity claim. The Builder did not challenge the “second stage”, which has been described as the weighing or “balancing exercise”, by which the public interest in refusing disclosure is evaluated in order to determine whether it outweighs the public interest in permitting disclosure. The Builder also challenged the decision by the primary judge to inspect only a handful of the disputed documents.
The Builder made an application to lead fresh evidence to demonstrate that a number of documents were not properly the subject of claims of immunity. The Builder’s proposed evidence included various discovered documents which appeared to be identical to those over which immunity claims had been made, but which were not the subject of any redactions. The Builder contended that when the unredacted portions of the documents were considered, it was clear that there was no proper basis for redaction and, in consequence, for the claims of public interest immunity.
HELD (the Court), dismissing Builder’s application to lead fresh evidence, and the Builder’s appeal, in each case with costs.
1.The determination of an appeal against a claim of public interest immunity does not involve an appeal against a discretionary decision but is determined according to the standard of correctness. Whether the court should or should not inspect documents subject to claims of public interest immunity does involve the exercise of a discretion, and that aspect of an appeal will be determined according to whether there is error of a kind recognised in House v The King. [126], [168] and [346]
2.The Builder’s criticisms of the State’s evidence should be rejected. Given the way each of the Categories have been framed, it has not been demonstrated that they fall outside the proper scope of what may be regarded as Cabinet documents merely because they might only indirectly reveal the deliberations of Cabinet. What is common to each Category is the premise that the disputed documents tend to reveal Cabinet decisions, deliberations or communications, where the claim is strongest in the case of Category A1 documents, even where the documents are those of a Cabinet committee. [129]-[132], [164]-[166], [309]-[311] and [337]-[339]
3.The purpose for which a document was bought into existence may, like legal professional privilege, be relevant when determining whether it is subject to public interest immunity. Unlike legal professional privilege, however, whether a document is covered by public interest immunity is not necessarily determined by ascertaining the purpose for which it was brought into existence. [153], [321]-[322]
4.In so far as the Builder asserted that mere “updates” to Cabinet or a Cabinet committee could not be the subject of claims for immunity, that assertion is without support in the authorities and must be rejected. [163], [323]-[325]
5.A finding of relevance concerning a document the subject of what appears to be a good claim of public interest immunity does not, without more, require the court to inspect in order to weigh the competing public interests for and against disclosure. The broad discretion is not constrained in that way. The Builder has not established that the primary judge erred in connection with his exercise of discretion. [188]-[189], [349]-[355]
6.The evidence relied on by the Builder is not in any sense fresh evidence and the Builder cannot be permitted to rely on the State’s inadvertent error in disclosing or failing to redact documents over which public interest immunity claims have been upheld. This evidence was always available to the Builder and the parties must be held to the approach they took to the evidence before the primary judge. [203]-[204], [358]
Commercial Arbitration Act 2011 (SA) s 27E; Evidence Act 2008 (Vic) s 130; Freedom of Information Act 1991 (SA); Public Finance and Audit Act 1987 (SA); Uniform Civil Rules 2020 (SA) r 32.2(4), referred to.
A v Hayden (No 2) (1984) 59 ALJR 81; Adelaide Brighton Cement v South Australia (1999) 75 SASR 209; Alister v The Queen (1984) 154 CLR 404; Asiatic Petroleum Co Ltd v Anglo-Persian Oil Co Ltd [1916] 1 KB 822; Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667; Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1766; Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227; Aversa v Transport for New South Wales [2022] NSWSC 277; Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523; Betfair Pty Ltd v Racing New South Wales (No 7) [2009] FCA 1140; Borg v Barnes (1987) 10 NSWLR 734; Burmah Oil Co Ltd v Governor and Co of the Bank of England [1979] 1 WLR 473; Burmah Oil Co Ltd v Governor and Co of the Bank of England [1980] AC 1090; Cain v Glass (No 2) (1985) 3 NSWLR 230; Carey v Ontario [1986] 2 SCR 637; Casley-Smith v District Council of Stirling (1989) 51 SASR 447; Chief Commissioner of Police (Vic) v Crupi (2024) 98 ALJR 1131; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31; Commonwealth v Northern Land Council (1993) 176 CLR 604; Conway v Rimmer [1968] AC 910; CPB Contractors Pty Ltd v Celsus Pty Ltd (2017) 353 ALR 84; CPB Contractors Pty Ltd and Hansen Yuncken Pty Ltd v State of SA [2024] SASC 46; CTC Resources NL v Australian Stock Exchange Ltd (2000) 22 WAR 48; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; Draoui v Le [2021] SASCA 33; Duncan v Cammell, Laird & Co Ltd [1942] AC 624; Egan v Chadwick (1999) 46 NSWLR 563; Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; Gartner v Carter [2004] FCA 258; GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; Griffin v South Australia (1925) 36 CLR 378; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; Harbours Corporation of Queensland v Vessey Chemicals Pty Ltd (1986) 12 FCR 60; Hooker Corporation Ltd v Darling Harbour Authority (1987) 14 ALD 110; House v The King (1936) 55 CLR 499; Kamasaee v Commonwealth (No 3) (2016) 52 VR 322; Kamasaee v Commonwealth (No 5) (2016) 52 VR 322; Ku-ring-gai Council v West (2017) 95 NSWLR 1; Lanyon Pty Ltd v Commonwealth (1974) 129 CLR 650; Legal Services Commission v Trotter (1990) 54 SASR 74; Marconi's Wireless Telegraph Co Ltd v Commonwealth (No 2) (1913) 16 CLR 178; Medical Board of South Australia v Fisher (2000) 76 SASR 242; Middleton v Western Australia (1996) 17 WAR 201; Neilson v Laugharne [1981] QB 736; New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60; New South Wales v Ryan (1998) 101 LGERA 246; New South Wales Commissioner of Police v Nationwide News Pty Ltd (2007) 70 NSWLR 643; Rankine v South Australia [2022] SASCA 18; North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1080; Police Federation of Australia v Nixon (2011) 198 FCR 267; Re Timor Sea Oil & Gas Australia Pty Ltd (in liq) (2020) 389 ALR 545; Robinson v South Australia [1931] AC 704; Robinson v South Australia (No 2) [1931] AC 704; Rogers v Home Secretary [1973] AC 388; RP Data v Western Australian Land Information Authority [2010] FCA 922; Sankey v Whitlam (1978) 142 CLR 1; Spencer v Commonwealth (2012) 206 FCR 309; Sportsbet Pty Ltd v New South Wales (No 3) [2009] FCA 1283; Victoria v Brazel (2008) 19 VR 553; Victoria v Seal Rocks Victoria (Australia) Pty Ltd (No 2) [2001] VSC 249; Welden v Smith [1924] AC 484; Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414; Young v Quin (1985) 4 FCR 483; Zarro v Australian Securities Commission (1992) 36 FCR 40, considered.
CPB CONTRACTORS PTY LTD AND HANSEN YUNCKEN PTY LTD v STATE OF SA
[2024] SASCA 130Court of Appeal – Civil: Livesey P, Doyle and David JJA
LIVESEY P AND DAVID JA.
Introduction
This is an appeal against a decision by which claims of public interest immunity concerning what were described as “Cabinet documents” were upheld and the application to inspect those documents was dismissed.[1]
[1] CPB Contractors Pty Ltd and Hansen Yuncken Pty Ltd v State of SA [2024] SASC 46 (Kourakis CJ) (Reasons).
The appellant (the Builder), the respondent (the State) and the interested party (Celsus) are parties to private arbitral proceedings concerning the project to design and construct the new Royal Adelaide Hospital in South Australia (nRAH).
The construction of the nRAH was procured by way of a public-private partnership. By reason of “back-to-back” contracts, there are two arbitrations.[2] The first concerns an arbitration between the Builder and Celsus and the second concerns an arbitration between the State and Celsus. These are being heard in parallel by the same arbitrator. The seat of these arbitrations is Adelaide, South Australia. The hearing of these arbitrations commenced in late February, earlier this year.
[2] Designated ACICA case 2018-119 and ACICA case 2018-124, together, the ACICA Arbitrations.
Celsus determined to take no part in this appeal and will abide the outcome.
Among around 200,000 documents discovered by the State, nearly 700 were subject, whether in part or completely, to claims of public interest immunity or parliamentary privilege. Those documents were either produced in a redacted form or entirely withheld. Over time, the Builder’s contentions regarding these documents narrowed.
This appeal is only concerned with claims to public interest immunity made over less than 100 documents.
The hearings before the primary judge were facilitated by a combination of “open” affidavits and “closed” or confidential affidavits. Much of the material has been filed on a “party access basis” given the confidential nature of the private arbitral proceedings.
After hearing from the parties late last year, the primary judge gave extensive reasons for his decision that the claims of public interest immunity should be upheld, together with his refusal to inspect most of the documents. The parties to this appeal remain in dispute about some of the principles to be applied, together with their application by the primary judge.
For the reasons that follow, the appeal should be dismissed. These reasons are set out as follows:
Background to this appeal – the contractual arrangements
Technical completion and commercial acceptance
The ACICA Arbitrations
The disputed public interest immunity and parliamentary privilege claims
The evidence relied on by the State – Cabinet documents
The documents the subject of the Builder’s application
The decision of the primary judge
The Builder’s grounds of appeal
The determination of appeal grounds 1 and 3 – the first stage
The determination of appeal ground 2 – inspection
A further issue: should this Court inspect?
A further issue: fresh evidence
Confidential affidavits
Conclusion
Background to this appeal – the contractual arrangements
The Builder is an unincorporated joint venture between CPB Contractors Pty Ltd and Hansen Yuncken Pty Ltd, trading as the HYLC Joint Venture.
Celsus was formerly known as SA Health Partnership Nominees Pty Ltd, trustee for the SA Health Partnership Trust, now known as the Celsus Trust.
Celsus and the Builder are parties to a contract dated 20 May 2011 for the design and construction of the nRAH (the Construction Contract). This was amended on 8 August 2011 and again on 31 January 2014. Pursuant to clause 72.2(b) of that contract, the Commercial Arbitration Act 2011 (SA) is the law applicable to the ACICA Arbitrations. By s 27E, confidentiality obligations apply to the conduct of the arbitral proceedings. Accordingly, party access orders were sought and made concerning documents tendered in these proceedings pursuant to r 32.2(4) of the Uniform Civil Rules 2020 (SA).
Under the Construction Contract the design and construction costs for the nRAH were specified at $1.85 billion.
Separately, the State and Celsus were parties to a contract also dated 20 May 2011 (the Project Agreement). That contract was also amended on 8 August 2011 and again on 31 January 2014.
In addition, the State, the Builder and Celsus entered into a deed known as the “Builder Direct Deed” which concerned, amongst other matters, the role of the State in relation to the Construction Contract as well as its knowledge regarding the terms of that contract.
Technical completion and commercial acceptance
Initially, the Construction Contract required that the Builder achieve technical completion by 19 January 2016 and commercial acceptance by 18 April 2016.
On or around 20 May 2011, the State, Celsus and Donald Cant Watts Corke Pty Ltd entered into an Independent Certifier Agreement by which the latter was appointed independent certifier for the nRAH.
On or around 20 May 2011, the State, Celsus and other financiers (SA Health Partnerships Pty Ltd and ANZ Fiduciary Services Pty Ltd) entered into a Financier Direct Deed.
Before September 2015, the Builder notified Celsus of a number of claims, including for extensions of time and delay costs associated with the construction of the nRAH. However, on 17 September 2015 deeds of settlement were entered into by which various claims concerning extensions of time and delay costs were resolved and the dates for technical completion and commercial acceptance were varied to 4 April and 3 July 2016, respectively. These deeds were entered into by Celsus and the Builder, as well as by the State and Celsus, and have been referred to as the Interim Settlement Agreement.
Following the Interim Settlement Agreement, the Builder forwarded to Celsus a Notice of Claimed Entitlements which explained its reasons for the delayed completion of the nRAH. These included:[3]
[3] This Notice was referred to in CPB Contractors Pty Ltd v Celsus Pty Ltd (2017) 353 ALR 84, [25] (Lee J).
1.failures and misrepresentations by the State in relation to the Enterprise Patient Administration System (EPAS);
2.the failure by the independent certifier to provide independent certifier services in accordance with its obligations;
3.the notification and conduct of the State’s works;
4.delays and maladministration in the procuring and approval of minor modifications and modifications by the State and Celsus;
5.the wrongful rejection of the Builder’s various extension of time claims by the State and Celsus;
6.the wrongful rejection of the Builder’s master works programmes by the State and Celsus;
7.unreasonable allegations of defects and so-called “ransom” demands by the State and Celsus;
8.the unlawful issuing of default notices by the State; and
9.unlawful interference with contractual relations.
Between January and mid-March 2017, the State, Celsus and the financiers (or some of them) entered into a suite of arrangements without the consent of the Builder, including:[4]
1.an agreement concerning the completion of the nRAH as an outcome of a mediation, described as the Mediated Agreement;
2.a deed seeking to embody the effect of the Mediated Agreement, described as the Completion Deed;
3.a cure plan to give effect to the obligations set out in the Mediated Agreement and the Completion Deed, described as the purported Cure Plan; and
4.a deed known as the Consents & Acknowledgments Deed.
[4] These documents are referred to in CPB Contractors Pty Ltd v Celsus Pty Ltd (2017) 353 ALR 84, [16] (Lee J).
On 15 March 2017, the independent certifier awarded technical completion under the Project Agreement as amended by the Mediated Agreement, the Completion Deed and the purported Cure Plan. On the same date, Celsus awarded technical completion under the Construction Contract in reliance on the independent certifier’s award of technical completion.
On 13 June 2017, commercial acceptance was certified by the independent certifier and the State under the Project Agreement as amended by the Mediated Agreement, the Completion Deed and the purported Cure Plan, as well as by Celsus under the Construction Contract in reliance on the independent certifier.
The ACICA Arbitrations
The ACICA Arbitrations were commenced in early 2018. The pleadings run to thousands of pages. In summary, the Builder claims that the State conducted itself wrongfully throughout the nRAH Project, and that Celsus did not take sufficient steps to ensure that the State met its obligations relating to the nRAH Project (the wrongful conduct claim).
The State denies the Builder’s wrongful conduct claim and contends that the dispute arose in circumstances where the Builder was 421 days late in meeting the commercial acceptance date. As a result, the Builder was liable to pay to Celsus mandatory liquidated damages in the amount of approximately $185 million.
Paragraph [53] of the Builder’s seventh amended statement of claim in the arbitral proceedings pleads that the State adopted a strategy in breach of its duty to co‑operate in the development of the nRAH:[5]
[5] Reasons, [32].
53 Overviews
53.1From a point in time unknown to the Builder, but by no later than 2 November 2016, the State determined to, and subsequently did, embark upon a course of conduct, which included (amongst other things):
(a) hindering [Celsus] and the Builder achieving [technical completion and commercial acceptance];
(b) failing to cooperate with [Celsus] and the Builder;
(c) delaying the achievement of [technical completion and commercial acceptance] (and thereby payment of QSPs);
(d) demanding $600 million in Ransom Compensation;
(e) issuing invalid Notices of Default;
(f) rejecting Cure Plans;
(g) raising baseless allegations of safety issues;
(h) inducing (or seeking to induce) [Celsus], in breach of its obligations under the Construction Contract, to terminate the Builder’s ongoing involvement in the Project and remove it from Site as soon as possible following the achievement of [technical completion], to withdraw all [extension of time] claims against the State and to procure the cessation of further claims being made by the Builder; and
(i) inducing [Celsus] to enter into a series of unlawful agreements in breach of the Construction Contract,
in breach of the Upstream Duty of Cooperation.
53.2By reason of the State’s conduct and pursuant to clause 79.16(d) of the Construction Contract, the Builder reasonably believes that [Celsus] has a claim against the State for breach of the Upstream Duty of Cooperation.
53.3The Builder is entitled to any relief granted to [Celsus] by reason of the State’s breach of the Upstream Duty of Cooperation.
53.4Further, by reason of the matters pleaded below, [Celsus] breached the Downstream Duty of Cooperation and clause 1.8 of the Construction Contract.
Paragraph [55] of the Builder’s claim pleads that, from at the latest November 2016, the State determined to hinder Celsus and the Builder from achieving technical completion and commercial acceptance, and not to cooperate with the Builder and Celsus in the discharge of the Construction Contract. It is also pleaded that the State determined to pursue compensation of about $160 million when it knew that it had no reasonable entitlement to that sum, and to procure Celsus to terminate the Builder’s ongoing involvement in the nRAH project. The Builder also pleaded that the State:[6]
(a)engaged in a course of conduct whereby the State’s failures were hidden from the Builder with the State delaying technical completion and commercial acceptance to postpone its obligations to make payments until it considered, for the then‑Government’s political purposes, that it wished to open the nRAH, just prior to the March 2018 South Australian election (furthered through, amongst other things, a strategy of issuing and maintaining defect notices against the Builder’s works …); and
(b)entered into a series of unlawful contracts with Celsus in breach of, and interfering with, the existing contractual framework for the [nRAH] so as to change the regime for completion of the nRAH, thereby masking its own failures and depriving the Builder of its contractual entitlements.
[6] Reasons, [34].
At the hearing of this appeal, junior counsel for the Builder accepted that its case involved “a large submission but that is the case we are advancing”.
The State denies these allegations. It contends that they are not supported by evidence, and they are inconsistent with the State’s attempt to facilitate the achievement of technical completion earlier than would otherwise have been the case.
An important aspect of the dispute concerns the role of various “decision‑makers” who participated on the “nRAH Project Steering Committee”. The State established the nRAH Project Steering Committee as its decision‑making body for the nRAH.
On the Builder’s case, these “decision‑makers” comprised a small number of people who orchestrated what it alleged was wrongful conduct by the State.
In their statements served by the State in the course of the arbitration, each person alleged to be a “decision-maker” denied the allegations of wrongful conduct. Broadly, these decision-makers were, at the relevant times, the Project Director of the Department of Planning, Transport and Infrastructure (the Department), the Chief Executive Officers of the Department, Assistant Crown Solicitor “Chief Commercial Counsel” from the Crown Solicitor’s Office, and a Project Director from the Department of Health, whose company was retained as a consultant.
From time to time each of these decision-makers were nRAH Project Steering Committee members. The work of the nRAH Project Steering Committee was assisted by a “Commercial Strategy Team” headed by Mr Chris Gray, then an Assistant Crown Solicitor. The Commercial Strategy Team included those named in the following table, which also shows the title and responsibilities of each:[7]
[7] Reasons, [16].
Name Title Responsibility Vickie Kaminski Interim Chief Executive Accountable to government for the success of the new RAH Project – key decision maker, ensures service provider accountability, provides whole of Government input and support stakeholder management. Don Frater Deputy Chief Executive, Finance and Corporate Services Accountable for system wide finance and business services matters. Michael Deegan Chief Executive Officer, DPTI Accountable for effective administration of the Project Agreement with [Celsus] up to [commercial acceptance], in particular the successful delivery of design, construction and facilities management services under the agreement. David Reynolds Chief Executive Officer, DTF Advice on whole of Government affordability – input to value for money discussions on changes to the business case and its relationship to achieving the national efficient price for service delivery. Lidio Andreotti Senior Legal Counsel & Executive Solicitor, Crown Solicitor’s Office Provide legal oversight and advice on contractual and other relevant matters. Paul Myers Project Director Accountable for Contract Administration and Management through to [commercial acceptance] including FTP Management and Coordination.
The role of the nRAH Project Steering Committee was to maintain oversight of the delivery of the nRAH for the State, and to be responsible for formulating the decision‑making that had a material impact on the business case for the nRAH. As its terms of reference described it, it was the “peak decision-making body”:[8]
The Steering Committee is the peak decision making body for the New RAH Project and is chaired by the [Chief Executive], DHA who is accountable for the success of the project.
The Steering Committee meets at least monthly and [focused] on decisions that have a material impact on the business case for the project.
The membership of the Steering Committee includes senior representatives of the relevant Government stakeholders …
[8] Reasons, [13].
During early 2016, there were meetings of the nRAH Project Steering Committee and correspondence was exchanged between the decision-makers concerning what was then described as the “nRAH Strategy”.
The Builder’s case is that, by 9 March 2016, the nRAH Project Steering Committee endorsed the State “position” that no concession would be made to Celsus on its existing contractual obligations to meet technical completion by 4 April 2016 and it discussed, in a general way, the risks of delay and the State’s response to those risks.
A briefing note was prepared and supplied to the nRAH Project Steering Committee which assessed different delay permutations and recommended strategies to manage them. For present purposes it is sufficient to observe that the briefing note assessed risk levels as moderate or high. A moderate risk was assessed in connection with pressure on the State budget, which it was said was “at some risk” because of “current cost pressures”. Another of the issues, assessed as a high risk, was that the State might be required to pay for “an empty hospital”.
In subsequent correspondence, what the State maintained were its reasonable requirements by way of compensation for delays in achieving technical completion were considered. There was some dispute amongst the decision-makers as to the appropriate level of compensation, with one suggesting that compensation of a few hundred thousand dollars was inadequate to reflect “the distress [the] State is incurring”.[9]
[9] Statement of Agreed Facts, 21.
Soon after this correspondence, the Project Director resigned and addressed correspondence to the Minister for Health dated 8 April 2016. In the course of that correspondence, the Project Director referred to a strategy to set aside the contract and pursue an out of contract commercial agreement which, she said, placed her in an “untenable position”.
Later that year, the solicitors for the State sent a letter to the solicitors for the financiers and Celsus dated 2 November 2016 (the Lipman letter).
The Builder alleges and the State denies that the Lipman letter amounted to an attempt to exert undue pressure on Celsus to the detriment of the nRAH. In the wake of that correspondence there were conversations between representatives of the nRAH Project Steering Committee and the Builder.
These are the subject of dispute in the arbitrations. It is unnecessary to go into detail about them. It is sufficient to observe that the Builder alleges but the State denies that there was any strategy, commercial or otherwise, designed by the decision-makers to delay or disrupt the opening of the nRAH to deprive Celsus of payments to which it was rightfully entitled (and which, in the nature of the back‑to‑back arrangements which applied, would have been on-paid to the Builder).
The parties are in dispute about the proper meaning and effect of various meeting documents, such as agendas and minutes, of the nRAH Project Steering Committee and, particularly, whether what occurred during late 2016 and into the middle of 2017 represented wrongful conduct by the State, designed to extract for the State a range of benefits to which it was not properly entitled.
Separately, the parties are also in dispute about EPAS, including whether it formed part of the “State works” which it was the obligation of the State to supply before technical completion. As part of this dispute the Builder claims that the State was obliged to provide it with a “fully functional, nRAH-configured and production ready version of EPAS … in sufficient time” so that all testing could be performed before technical completion, but this was never done.[10]
[10] Builder’s submissions before the primary judge, [59].
Part of the State’s response is that EPAS did not ever form part of the “State works” (as defined in the relevant contractual documents).
Finally, the parties before the arbitrator are in dispute about claims by the Builder concerning additional costs it claims to have incurred because of what it contends were unknown pre-existing contamination and latent ground conditions. The Builder’s claim was not accepted by the State at the time. Nor were its claims for extensions of time and prolongation costs. The Builder pleads that, by reason of the contamination and latent ground conditions it changed its construction schedule, resulting in lost productivity. It contends that the Interim Settlement Agreements, at least on these issues, were procured by misrepresentation and unconscionable conduct.
The State denies that there was any contamination within the meaning of the Project Agreement and contends that the Builder did not follow the agreed site remediation plan. The State also pleads that the nRAH was constructed on a former railyard and the Builder was given detailed site investigation reports to guide remediation of the site. The State pleads that the Builder’s remediation management plan formed part of its contract bid, and the Builder did not discover previously unknown contamination.
The State contends that the Builder’s claim is concerned with the cost of disposing of waste soil which had to be excavated from the site to reach the required “bench levels” for construction, together with the Builder’s unauthorised decision to alter the remediation strategy.
Discovery has been made in connection with these disputes, on the basis of direct relevance, and the issue on appeal concerns the extent to which relevant documents are properly subject to claims of public interest immunity. There are no longer any disputed claims concerning parliamentary privilege.
Before addressing the claims of immunity over the disputed documents, it is appropriate to stand back and look at the Builder’s case, concentrating on the relevant periods.
The disputed documents span dates between May 2011 and May 2017.[11]
[11] Builder’s “Aide Memoire”.
At the outset, there are the claims notified by the Builder in September 2015, together with the Interim Settlement Agreement. After that time, though the pleadings refer to the State’s determination to embark on wrongful conduct by no later than early November 2016, the Builder relies on earlier events in March and April 2016, including the nRAH Project Steering Committee endorsement of the State’s position of making no concessions, and the Project Director’s resignation letter dated 8 April 2016 concerning the “nRAH Strategy”. That period culminated in the events from late 2016, including the entry into unlawful contracts in March 2017, concluding with the award of commercial acceptance in the middle of 2017.
Spliced through this period are the Builder’s allegations concerning EPAS and contamination.
This brief overview, at an admittedly high level, does not suggest that documents dated before early 2016 or after early 2017 are likely to be particularly probative of the Builder’s case, especially the allegations of wrongful conduct by the State and its decision-makers.
The disputed public interest immunity and parliamentary privilege claims
Initially, the parties to the ACICA Arbitrations entered into arrangements by which the disputed public interest immunity and parliamentary privilege claims would be resolved by the Hon Roger Gyles AO KC. Ultimately, it was determined that he lacked jurisdiction and those claims would need to be resolved in this Court.
By that stage, during August and September 2023, the challenges concerned around 200 documents subject to claims of parliamentary privilege and around 115 documents subject to claims of public interest immunity.
Between November and December 2023, the parties agreed the procedural steps necessary to facilitate the determination of those disputed claims by this Court, which included agreeing a Statement of Agreed Facts. The purpose of the Statement of Agreed Facts was evidently to provide the factual context for the determination of the disputed public interest immunity and parliamentary privilege claims.
Appended to the Statement of Agreed Facts were two schedules listing the documents subject to those respective claims. In addition, various of these documents were “colour coded” to reflect what the Builder said were the topics addressed by the documents. For example, Blue was used to denote those documents which concerned the Builder’s pleading about what it alleged was wrongful conduct by the State (and denied by it). Purple was used to denote the documents relevant to the nRAH Project Steering Committee. Green was used to denote documents relating to EPAS, and Orange denoted documents concerning the allegations of contamination. Grey was used to denote the documents referable to the disputed claims of parliamentary privilege.
For its part, the State used a different category system, where “A” referred to the public interest immunity documents and “B” to parliamentary privilege documents. As will be seen, there were sub-categories.
The evidence relied on by the State – Cabinet documents
The evidence relied on by the State in support of its claims included affidavit evidence from Ms Green, Acting Executive Director, Cabinet Office, in the Department of the Premier and Cabinet. Ms Green has held that position since 17 April 2023. She has been with the South Australian public sector since March 2017.
In her present role, Ms Green is head of the Cabinet Office, reporting to the Deputy Chief Executive, Policy, Data and Intergovernmental Relations of the Department.
Much of Ms Green’s evidence was uncontentious. Indeed, some of it might be thought obvious. For example, she explained that Cabinet is the central and superior decision-making body of the South Australian Government and that it consisted of the Premier and Ministers. At Cabinet meetings, the Premier and Ministers regularly discuss, deliberate and decide on government action, policy and strategic direction. The Chief Executive of the Department is the most senior member of the public service and the only member permitted to attend Cabinet meetings.
Ms Green explained that under the Westminster system of government as applied in South Australia, there are longstanding conventions associated with Cabinet and how Cabinet information and deliberations are treated. There are key principles relating to collective responsibility, unity and confidentiality.
The necessity for Cabinet information to be carefully handled and protected is reflected in the SA Protective Security Framework. Strict confidentiality obligations apply and are recognised in the privileges applicable to Cabinet documents and any material which tends to reveal Cabinet deliberations.
Ms Green explained that the Cabinet Office maintains a secure electronic database for final Cabinet documents, including “Cabinet submissions” and attachments, “Cabinet notes” and attachments, Cabinet agendas and decision sets and agendas. The present database is known as “Shrike” and has been used since September 2018. The previous system, known as ECO, was used between 2008 and 2018. Access to the electronic Cabinet system is restricted to Ministers and limited ministerial staff and public servants.
Ms Green also explained that matters are brought to Cabinet for approval, discussion or direction for a variety of reasons, and that this is not limited to decision-making within established approvals and authorities. She gave as an example the financial expenditure delegations outlined in Treasurer’s instructions which extended to major procurements and commercial agreements. Sometimes, Ms Green explained, Cabinet may collectively decide that it wished to maintain oversight of a matter, such as a significant State project.
Ms Green said that from time-to-time Cabinet established Cabinet Committees. These operated under the same conventions and practices as Cabinet.
The discussions, deliberations and decisions made by Cabinet are informed by formal Cabinet papers. These are described as “Cabinet submissions” and “Cabinet notes”. Each must be signed by a Minister before it may be considered by Cabinet. Ms Green explained that a Cabinet submission seeks a decision from Cabinet, usually in the form of the approval of a proposal. Proposals may take the form of one or more recommendations for Cabinet’s decision.
Typically, a Cabinet submission was expressed in a form that could be agreed if Cabinet chose to adopt the recommendation made. The information contained in the submission will include the information necessary for Cabinet to debate and decide what is proposed. Because of the information contained within them, and because of the way in which recommendations are expressed, Cabinet submissions ordinarily reveal the actual deliberations of Cabinet.
Where a formal approval or decision is not required, a “Cabinet note” provides information for noting by Cabinet. A Cabinet note may be used to provide an update to Cabinet about significant strategic issues or projects of interest or concern.
Ms Green gave examples of situations where Cabinet submissions and Cabinet notes contained information or attached documents which were needed before a properly informed discussion could be held or a decision could be made. She said that documents presented to Cabinet as attachments to Cabinet submissions or Cabinet notes contained information which revealed the deliberations of Cabinet. They were, she said, treated as Cabinet documents.
Ms Green explained that, from time to time, Cabinet may make a request that work be undertaken to support the deliberations made by Cabinet on a particular issue.
After Cabinet considered a Cabinet submission or a Cabinet note, a record was made of the outcome. This may include noting, approval, deferral or amendments made to the recommendations provided. The outcome was typically handwritten on the physical copy of the Cabinet submission with a stamp and signature of the Chair of Cabinet, usually the Premier.
Ms Green explained that Cabinet and Cabinet Committee agendas, decisions (representing the formal record of Cabinet’s decisions) and the attachments to Cabinet’s submissions and notes are all considered to be Cabinet documents. After Cabinet documents are considered, the documents are kept in a secure environment by the Minister, or the agency of the Minister who caused the Cabinet submission or the Cabinet note to be prepared.
In addition, the Cabinet Office kept copies of each final Cabinet submission or Cabinet note in a secure electronic storage facility.
In addition to the Cabinet documents described, Ms Green explained that Cabinet Ministers are provided with information and briefings on various items which take a variety of forms. These usually assisted Ministers to formulate views and they informed the representations they make to, as well as their participation in, Cabinet discussions and deliberations in Cabinet and Cabinet Committees. Various Ministerial agencies worked closely with their Ministers to prepare the requisite Cabinet documents. Ms Green explained that this process can result in correspondence and documents which reveal the options, strategies and timing of deliberations made and decisions taken by Cabinet and Cabinet Committees.
A highly sensitive Cabinet submission may be “locked”, by which circulation is tightly restricted and the item may not be named in the Cabinet agenda or in the decision set. This may be done at the request of the Minister submitting the particular Cabinet submission. If a Cabinet submission and associated documents were “locked”, they were only visible to the Cabinet Office and the offices of Ministers within the database.
Ms Green explained that the importance of maintaining the confidentiality of Cabinet documents was reflected in legislation such as the Freedom of Information Act 1991 (SA), together with government policies including Premier and Cabinet Circulars.
In the event of a change in Government, Ms Green explained that once the Governor issued the writs for a State election, all Cabinet documents were removed from the custody of each Minister and placed in the custody of the Department. Ministers of the incoming Government were not, by convention, permitted access to the Cabinet papers of the outgoing Government or, indeed, any previous Government of a different political persuasion. These conventions were intended to maintain the confidentiality of Cabinet deliberations.
The documents the subject of the Builder’s application
In connection with the Builder’s application, Ms Green said that the nRAH was, at the time, the largest infrastructure project ever undertaken by the South Australian Government, and the first public-private partnership of its kind in this State.
Given the size of the investment and the significance of the project to the State, a range of matters required Cabinet’s authority and direction. These included Cabinet approvals in respect of the thresholds within the Treasurer’s Instruction 8, “Financial Authorisations”, prepared under the Public Finance and Audit Act 1987 (SA). Ms Green also explained that, as part of this oversight, Cabinet received a range of documents including business cases, independent reviews and assurance reports.
Ms Green said that she had reviewed a schedule prepared by the solicitors for the State. She said that she was given copies of all of the documents identified in the schedule and over which the State maintained a claim for public interest immunity. With the assistance of public servants within the Cabinet Office, Ms Green said that she had considered each claim for public interest immunity which was the subject of challenge by the Builder. Each document was reviewed (including the redacted portions of any document) together with related Cabinet and Cabinet Committee documents.
The information in the documents the subject of the claim of public interest immunity was cross-checked against relevant Cabinet and Cabinet Committee documents. Whether there was a link, and its nature, between these and Cabinet deliberations was identified.
Ms Green deposed that she then personally reviewed all of the relevant documents and verified the nature of the link or connection between the documents the subject of challenge and Cabinet documents, decisions, deliberations or discussions.[12]
[12] Affidavit of Robyn Sonya Green sworn 8 December 2023, paragraph 35.
Ms Green deposed that these Cabinet documents were considered by Cabinet or a Cabinet Committee between 2010 and 2017. She said that all but two of the Cabinet submissions were “locked”.
Ms Green gave evidence that it was her opinion that the information subject to the public interest immunity claims fell into three sub-categories:
Category A1: Documents that were Cabinet documents (whether in final or draft form or were an attachment or which repeated the content contained within a Cabinet document).
Category A2: Documents revealing Cabinet decisions, deliberations or discussions.
Category A3: Documents which related to the preparation of Cabinet documents, and which would reveal the content of Cabinet documents.
Ms Green explained that, in addition, she prepared a confidential affidavit, to be tendered on an ex parte basis, and not made available to the Builder. She requested that this affidavit not be disclosed nor discussed in open Court.
Ms Green deposed to the outcome of her review of the documents in each sub-category.
In relation to the documents in sub-category A1, she said that, in each instance, the documents or redacted portions, comprised final or draft versions of Cabinet Submissions and Cabinet Notes, including enclosures and attachments. She explained that the documents or the redacted portions repeated the content of what was contained in a Cabinet document. Ms Green said that the enclosures and attachments included reports, business cases and independent reviews prepared by external consultants for consideration by Cabinet.
In relation to sub-category A2, Ms Green said that in each instance the documents or redacted portions revealed Cabinet decisions, deliberations or discussions. She further sub-categorised the documents within category A2 as follows:
1.speech notes for the Minister for Health for presentation at a Cabinet Submission to the Budget Review Cabinet Committee;
2.packs and minutes of meetings of the EPAS Programme Board which contained references to Cabinet decisions, deliberations or discussions;
3.briefing notes to the Chief Executive of Health and the EPAS Programme Board which contained references to Cabinet decisions, deliberations or discussions; and
4.packs and minutes of meetings of the nRAH Project Steering Committee which contained references to Cabinet decisions, deliberations or discussions.
In relation to the documents within sub-category A3, Ms Green said that each document on its face either contained discussion relating to the preparation of Cabinet documents or would reveal the content of Cabinet documents. She further sub-categorised those documents as follows:
1.packs and minutes of meetings of the EPAS Programme Board which either contained excerpts from Cabinet documents or which referred to budgetary considerations in relation to the roll out and delivery of EPAS submitted in preparation of Cabinet documents;
2.EPAS Programme status reports prepared for the EPAS Programme Board which all contained a direct quote from a Cabinet document;
3.packs and minutes of meetings of the nRAH Project Steering Committee, all of which disclosed the content or nature of Cabinet documents, including the content of draft Cabinet submissions;
4.briefing notes to the Chief Executive of Health, the EPAS Board and the nRAH Project Steering Committee which contained references to Cabinet documents or a discussion of materials used in the preparation of Cabinet documents;
5.some Cabinet documents in their own right, which additionally disclosed material related to the preparation of Cabinet documents; and
6.emails or email chains which disclosed the content of a Cabinet document, Cabinet submission or Cabinet agenda.
Ms Green then identified the Ministers from the current Cabinet who were also Cabinet Ministers when relevant decisions were made. In order, these were:
1.The Hon Tom Koutsantonis MP;
2.The Hon Geoff Brock MP;
3.The Hon Zoe Bettison MP;
4.The Hon Susan Close MP;
5.The Hon Stephen Mulligan MP;
6.The Hon Kyam Maher MP;
7.The Hon Peter Malinauskas MP;
8.The Hon Katrine Hildyard MP; and
9.The Hon Chris Picton MP.
Ms Green summarised her view regarding the disclosure of the documents within sub-categories A1, A2 and A3 in a general way as follows:[13]
Disclosure of the documents described as categories A1-A3 above would be at odds with the public interest to encourage frank and robust discussion about matters of public policy by members of Cabinet. Such disclosure would place at risk the willingness of Ministers to engage in free and open discussion in Cabinet if details about the subject matter of their discussions may be made publicly available. Such disclosure would also undermine Cabinet’s ability to receive frank and candid advice on policy decisions from those involved in providing information and advice for consideration by Cabinet as those advisors may be inhibited in the expression of their views by the knowledge that those views may be open to disclosure.
[13] Affidavit of Robyn Sonya Green sworn 8 December 2023, [47].
In consequence, Ms Green expressed the view that revealing these documents would breach the confidentiality of the Cabinet process which would have a deleterious “flow-on effect” where current and future Ministers may be concerned that what they have written may not remain confidential. Ms Green explained that, in her view, this would impact on the willingness of Ministers to engage in free and open discussion and put at risk robust government processes in South Australia.
In a supplementary affidavit dated 18 December 2023, Ms Green explained that, following a review of five further documents, she formed the view that they fell within sub-categories A2 (documents that would reveal Cabinet decisions, deliberations or discussions) and A3 (documents which related to the preparation of Cabinet documents and which would reveal the content of Cabinet documents).
In order to do this, Ms Green reviewed Cabinet records as well as the five documents in order to understand the connection between the challenged documents and Cabinet records. Ms Green said she had prepared a further confidential affidavit which, again, she asked be tendered on an ex parte basis but not made available to the Builder. She submitted that this affidavit, like the earlier confidential affidavit, should not be disclosed nor discussed in open court.
Ms Green expressed conclusions similar to those earlier outlined regarding the claim made for public interest immunity and the risks, as she saw them, associated with the disclosure of these documents.
Ms Green was not cross-examined on her affidavits.
The decision of the primary judge
After outlining the broad nature of the dispute between the Builder and the State, the primary judge articulated his understanding of the objections underlying each of the sub-categories relied on by the State:[14]
The claim for category A1 and A2 documents is that, if the documents were disclosed, they would reveal that some or all of the information they contain was the subject of a Cabinet decision, deliberation, or discussion. By corollary, categories A1 and A2 do not include documents which were prepared for a purpose other than for submission to Cabinet, but which were attached to, or accompanied, Cabinet documents, unless their disclosure would show that they were put before Cabinet.
In respect of category A3 preparatory documents, the objection is that production of the document, or the redacted part thereof, would reveal that the information it contains was provided to Cabinet.
The State’s position is, therefore, that it has not withheld from production documents which were prepared, or received, for the Steering Committee’s project management role merely because they also happen to have been provided to Cabinet in the discharge of its Cabinet advisory role. Objection to the production of documents is only made if, by that production, the information provided to Cabinet for its deliberations would be revealed.
[14] Reasons, [47]-[49].
The primary judge then addressed the leading authorities, particularly Alister v The Queen.[15] The primary judge accepted that the document descriptions demonstrated that they were not minutes of Cabinet deliberations, as was the primary focus in Commonwealth v Northern Land Council.[16] The primary judge then said that he determined the State’s claims on the basis that the documents, or parts of them, were put before Cabinet for its deliberations on budgetary decisions and directions which it would give or refrain from giving to the nRAH Project Steering Committee on how it should manage the nRAH.[17]
[15] Alister v The Queen (1984) 154 CLR 404, 414-415 (Gibbs CJ); Legal Services Commission v Trotter (1990) 54 SASR 74, 84-85 (Cox J); Commonwealth v Northern Land Council (1993) 176 CLR 604 and Adelaide Brighton Cement v South Australia (1999) 75 SASR 209, 212-214 (Debelle J).
[16] Reasons, [55]; Commonwealth v Northern Land Council (1993) 176 CLR 604, 617-618 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ).
[17] Reasons, [55].
The State did not defend this broad statement, contending that it was only made by reference to particular documents. Indeed, this broad statement is not consistent with the analysis his Honour made of particular documents, later in his reasons. Nonetheless, when the reasons are viewed as a whole it is clear that the primary judge took the view that, to varying degrees, the documents the subject of the disputed immunity claims were properly to be regarded as within the scope of public interest immunity as Cabinet documents.
The primary judge then went on to explain that the determination he made required a balancing of the public interest in the due administration of justice against the degree of protection against disclosure which “that class of documents, which comprises the subject matter of Cabinet deliberation, demands”.[18] His Honour explicitly acknowledged that the required degree of protection would vary, depending on the nature of the matters considered, as well as whether they were “of current or only historical importance”.[19]
[18] Reasons, [56].
[19] Reasons, [56].
The primary judge cited the decision of Debelle J in Adelaide Brighton Cement v South Australia:[20]
Discovery and production of documents is part of the adversarial process with the goal of ensuring fairness between the parties in the resolution of their dispute: per Toohey J in Commonwealth v Northern Land Council at 635. The principles relating to public interest immunity stem from the fact that there is another public interest which must also be recognised. Thus, the court is charged with the task of weighing the two competing public interests. A party cannot truly know whether a document supports his case until he has seen it. If documents had been discovered it is difficult to see why the parties seeking to have the documents produced for inspection should have to discharge any further test before the court will order inspection. As La Forest J said in Carey v The Queen (1986) 35 DLR 4 at 192:
“What troubles me about this approach is that it puts on a plaintiff the burden of proving how the documents, which are admittedly relevant, can be of assistance. How can he do that? He has never seen them; they are confidential and so unavailable. To some extent, then, what the documents contain must be a matter of speculation. But they deal with precisely the subject matter of the action and what one party was doing in relation to the relevant transactions at the time.”
For these reasons, I respectfully agree with Toohey J at 635 that, once documents appear in a list of documents, concerns as to relevance may be put to one side and it is hard to see why there should be a further threshold onus on the parties seeking production. As Cox J said in Legal Services Commission v Trotter, “Not all of Justice’s balancing exercises are best carried out blindfolded”. For those reasons, I do not think there is any test beyond relevance to be satisfied. Relevance is established by inclusion of a document in a list of documents. The Court will then inspect the documents for the purpose of weighing the competing public interests.
[20] Adelaide Brighton Cement v South Australia (1999) 75 SASR 209, 215-216 (Debelle J). The underlining was added by the primary judge.
Having held that the Builder had laid a sufficient foundation to require him to undertake a balancing of the public interest in Cabinet confidentiality and the public interest in the due administration of justice, the primary judge explained why he regarded the approach of Debelle J in the underlined passages (above) as wrong.[21]
However, I respectfully do not accept the principle stated in the last two underlined passages just cited. They seem to me to go further than any earlier authority in respect of civil proceedings. A judge exercises a discretion over whether or not to inspect the documents having regard to the likelihood that their contents will materially assist the party seeking production. I have not found it necessary to inspect the documents in respect of the challenges to the public interest immunity claim made over the first tranches of discovery because of descriptions of the nature of the documents in the open and confidential affidavits makes it clear that they properly fall within the classes of public interest immunity claimed by the State. Furthermore, the summaries of the controversies which are the subject-matter of the arbitration provided by the parties has allowed me to form a clear view based on the dates and descriptions of the documents in the open and closed affidavits that the administration of justice would not be materially compromised by withholding production.
[21] Reasons, [66].
Consistently with the above, the Full Court of the Supreme Court of Western Australia in CTC Resources NL v Australian Stock Exchange Ltd[282] expressly declined to follow the impugned reasoning of Debelle J in Adelaide Brighton Cement. In their joint reasons, Owen and Steytler JJ regarded that approach as inconsistent with authority, including the reasoning of the High Court in Northern Land Council. Their Honours expressed the view that the discretion to inspect was a discretion ‘of the broadest kind’, to be exercised only when it would assist the court in determining the claim for immunity:[283]
The discretion, while a broad one, must be exercised judicially. There should be something in the circumstances of the case which excites the attention of the court to the view that the process of determining the challenge to the immunity claim will be aided by inspection.
[282] CTC Resources NL v Australian Stock Exchange Ltd (2000) 22 WAR 48 at [28] (Owen and Steytler JJ).
[283] CTC Resources NL v Australian Stock Exchange Ltd (2000) 22 WAR 48 at [30] (Owen and Steytler JJ). See also Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523 at 553 (Burchett J, Sheppard and Pincus JJ agreeing, referring to ‘good reason’ to inspect).
While there are decisions of this Court in which inspection has been supported,[284] these decisions are consistent with an approach which does not require inspection as a matter of course,[285] but only where it is considered necessary, or likely to be of material assistance, in determining the claim for PII.
[284] Casley-Smith v District Council of Stirling (1989) 51 SASR 447 at 469 (Matheson J); Legal Services Commission v Trotter (1990) 54 SASR 74 at 84-86 (Cox J, King CJ agreeing, in the context of a contents claim for PII); Medical Board of South Australia v Fisher (2000) 76 SASR 242 at [56] (Duggan, Nyland and Bleby JJ).
[285] Rankine v State of South Australia [2022] SASCA 18 at [17] (Livesey P, Lovell and Doyle JJA).
Having rejected the appellant’s challenge to the principles applied by the primary judge, it remains to consider whether the primary judge’s exercise of his discretion to inspect miscarried in some way. Whilst the outcome of a claim for PII is an evaluative decision, subject to appellate review in accordance with the standard of correctness,[286] the parties accepted that the primary judge’s decision not to inspect the challenged documents was a discretionary one. As such, it fell to be reviewed in accordance with the principles of appellate restraint in House v The King.[287]
[286] State of Victoria v Brazel (2008) 19 VR 553 at [38] (Maxwell P, Buchanan and Vincent JJA); Police Federation of Australia v Nixon (2011) 198 FCR 267 at [82] (Lander, Gilmour and Gordon JJ); Spencer at [5] (Keane CJ, Dowsett and Jagot JJ).
[287] House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ).
The primary judge summarised his reasons for declining to inspect the challenged documents in paragraph [66] of his reasons, set out earlier in these reasons. In summary, his Honour did not find it necessary to inspect the documents because the ‘descriptions of the nature of the documents in the open and confidential affidavits makes it clear that they properly fall within the classes of public interest immunity claimed by the State’; and because he had been able to form a ‘clear view based on the dates and descriptions of the documents in the open and closed affidavits that the administration of justice would not be materially compromised by withholding production’.[288]
[288] Reasons at [66].
Having stated this general conclusion, his Honour then proceeded to explain by reference to a number of individual documents, or groups of documents, how he had reached his conclusion. The appellant has not sought to impugn his Honour’s reasons or conclusions in relation to any particular document or group of documents. Rather, its challenge to his Honour’s approach was left at a more general level.
In so doing, the appellant made a number of criticisms of Ms Green’s evidence. Those criticisms have been outlined and addressed in the joint reasons. Whilst Ms Green was not in a position to give evidence as to the subjective purpose for the creation of various of the documents, she was in a position to give evidence relevant to the nature and subject of the various documents, and their connection to Cabinet deliberations or processes. In summary, although there were some limitations upon the evidence she gave, her evidence provided an adequate basis for the primary judge to be satisfied that the challenged documents (or passages from those documents) over which PII had been claimed attracted the public interest in favour of confidentiality over Cabinet deliberations. In so concluding, the primary judge was assisted by not only the descriptions and subject matters of many of the documents, but also the context provided by the balance of documents in respect of which only a redacted passage was the subject of a claim for PII.
It may be accepted that the primary judge may have had some difficulty in determining the precise weight to attach to the public interest in favour of confidentiality for various of the challenged documents. But this did not mean that inspection was necessary. In circumstances where the primary judge was able to satisfy himself that the challenged documents (or passages) were unlikely to be of any material assistance in the resolution of the arbitral proceedings, it was open to the primary judge to reach a conclusion on the PII claims without proceeding to inspect the documents.
In considering the public interest in disclosure of the challenged documents (or passages), the primary judge was right to distinguish between general or basal relevance in the discovery sense, and the potential for non-disclosure of the documents (or passages) to materially compromise the administration of justice. This distinction was particularly significant in the context of the claims which were confined to particular passages of documents, rather than documents in their entirety. In the case of these claims for PII, even the concession that the documents were relevant in a basal discovery sense did not entail any necessary implication as to the relevance of the challenged passages.
At a general level, it is apparent from the nature of the matters in issue in the arbitral proceedings that the knowledge and motivations of various senior representatives of the State in connection with the nRAH project is a matter of significance in the arbitral proceedings. At the same time, the summary of the matters in issue provided to the primary judge (and summarised in the joint reasons) indicated a focus upon particular decisions and actions. This focus enabled the primary judge to make an informed assessment, particularly given the descriptions and early dates of a number of the documents, as to their likely relevance.
Having reviewed the evidence that was before the primary judge, I am satisfied that he was in a position to make an assessment that the challenged documents were unlikely to be of any material significance in the arbitral proceedings; and hence that withholding their disclosure would not materially compromise the administration of justice. In those circumstances, it was open to his Honour to conclude that there was no need or warrant to inspect the challenged documents, and to decline to do so.
The fact that the primary judge did inspect the six additional documents the subject of the Epilogue to his reasons tends to reinforce the appropriateness of the primary judge’s approach. In the case of those documents, having regard to their descriptions and (later) dates, his Honour considered it possible that they may be of material assistance to the appellant in the arbitral proceedings. However, upon inspection, his Honour was satisfied that they would not materially advance the appellant’s case beyond what would be apparent from the overt acts of the State and through the largely discoverable documents of the Steering Committee.[289]
[289] Reasons at [120]-[121].
In summary, I do not consider that the appellant has made out a basis for impugning the primary judge’s decision to decline to inspect the challenged documents. Ground 2 has not been made out.
To the extent that this Court retains an independent discretion to inspect the challenged documents, I would decline to do so for the same reasons the primary judge declined to do so.
Other matters
The appellant at times complained that the primary judge’s reliance upon confidential affidavit material may have involved a denial of procedural fairness. Whilst I appreciate the difficulties the appellant may have faced in advancing an argument along these lines, it was not a matter pursued in any of its grounds of appeal. As such, I do not consider it necessary to address it in any detail. It is sufficient for me to observe that, having read the confidential affidavit material provided to the primary judge, it did not raise any particular concerns as to the fairness of the procedure adopted. Whilst conscious of the need for a court to proceed with caution in receiving and acting upon information not made available to one of the parties,[290] it appears to me that there was good reason to think that the material included in the confidential affidavits, if revealed to the appellant, had the potential to undermine the claims for PII that it was intended to protect.
[290] See, for example, Re Timor Sea Oil & Gas Australia Pty Ltd (in liq) (2020) 389 ALR 545 at [15]-[32] (Leeming JA).
Finally, in relation to the appellant’s application to rely upon fresh evidence, I agree with the joint reasons.
Conclusion
For the reasons set out, the appeal should be dismissed.
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