CTC Resources NL v Australian Stock Exchange Ltd
[2000] WASCA 19
•17 FEBRUARY 2000
CTC RESOURCES NL -v- AUSTRALIAN STOCK EXCHANGE LTD [2000] WASCA 19
| (2000) 22 WAR 48 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 19 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:47/1999 | 27 JULY 1999 | |
| Coram: | OWEN J STEYTLER J | 17/02/00 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| PDF Version |
| Parties: | CTC RESOURCES NL (ACN 009 061 036) AUSTRALIAN STOCK EXCHANGE LTD (ACN 008 624 691) |
Catchwords: | Practice and procedure Discovery Claim of privilege on grounds of public interest immunity Master declined to carry out private inspection to determine claim Whether there is a threshold test before a court can inspect Relevance of documents important but not determinative Onus on party challenging privilege to establish claim is "unfounded or mistaken" Party challenging claim of privilege may rely on evidence put before the court by another party Practice and procedure Discovery Claim of privilege on grounds of public interest immunity Immunity extending to part only of document Entire document subject to privilege only where partial disclosure would make what remains misleading |
Legislation: | Nil |
Case References: | Air Canada v Secretary for State for Trade [1983] 2 AC 394 Alister v The Queen (1984) 154 CLR 404 Attorney General (NSW) v Stuart (1994) 34 NSWLR 667 Boys v Australian Securities Commission, unreported FCA; 9 May 1994; BC9601744 Brambles Holdings Ltd v WMC Engineering Services Pty Ltd (1995) 14 WAR 239 Burmah Oil Co Ltd v Bank of England [1980] AC 1090 Commonwealth v Northern Land Council (1991) 30 FCR 1 Conway v Rimmer [1968] AC 910 Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335 D v National Society for the Prevention of Cruelty to Children [1977] 1 All ER 589 Fletcher Timber Ltd v Attorney-General [1984] 1 NZLR 290 GE Capital Group Ltd v Banking Trust Co (CA) [1995] 1 WLR 172 Jones v Andrews (1888) 58 LT 601 Legal Services Commission v Trotter (1990) 54 SASR 74 Middleton v Western Australia (1996) 17 WAR 201 National Australia Bank Limited v Saunders (1988) 12 NSWLR 623 Peat Marwick Hungerfords v Executor Trustee, unreported; SCt of SA; 25 October 1995; Library No BC9502328 Sankey v Whitlam (1978) 142 CLR 1 Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR Special Minister for State v Quin (1984) 3 FCR 293 Young v Quin (1985) 4 FCR 483 Zarro v Australian Securities Commission (1992) 36 FCR 40 Alfred Crompton Amusement Machines Ltd v Customs & Excise Commissioners (No. 2) [1974] AC 405 Barton v Csidei & Ors [1979] 1 NSWLR 524 BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756 Bride as Trustee of Pinwernying Family Trust v Bird Cameron, unreported; FCt SCt of WA; Library No 960085; 19 February 1996 Caratti v Golden Mile Fuel Supplies Pty Ltd, unreported; FCt SCt of WA; Library No 950678; 13 December 1995 Duncan v Cammell, Laird & Co Ltd [1942] AC 624 Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566 Montarello v Berkman Capital Finance Pty Ltd (1997) 15 ACLC 556 Niemann v Electronic Industries Ltd [1978] VR 431 O'Toole v Mitcham (No 2) (1978) 3 ACLR 646 Rogers v Secretary of State for Home Department [1973] AC 388 Science Research Council v Nasse [1980] AC 1028 Wilson v Metaxas [1989] WAR 285 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : CTC RESOURCES NL -v- AUSTRALIAN STOCK EXCHANGE LTD [2000] WASCA 19 CORAM : OWEN J
- STEYTLER J
- Appellant
AND
AUSTRALIAN STOCK EXCHANGE LTD (ACN 008 624 691)
Respondent
Catchwords:
Practice and procedure - Discovery - Claim of privilege on grounds of public interest immunity - Master declined to carry out private inspection to determine claim - Whether there is a threshold test before a court can inspect - Relevance of documents important but not determinative - Onus on party challenging privilege to establish claim is "unfounded or mistaken" - Party challenging claim of privilege may rely on evidence put before the court by another party
Practice and procedure - Discovery - Claim of privilege on grounds of public interest immunity - Immunity extending to part only of document - Entire document subject to privilege only where partial disclosure would make what remains misleading
(Page 2)
Legislation:
Nil
Result:
Leave to appeal refused
Representation:
Counsel:
Appellant : Mr M J McPhee
Respondent : Dr J T Scoombee
Solicitors:
Appellant : Michell Sillar McPhee
Respondent : Mallesons Stephen Jaques
Case(s) referred to in judgment(s):
Air Canada v Secretary for State for Trade [1983] 2 AC 394
Alister v The Queen (1984) 154 CLR 404
Attorney General (NSW) v Stuart (1994) 34 NSWLR 667
Boys v Australian Securities Commission, unreported FCA; 9 May 1994; BC9601744
Brambles Holdings Ltd v WMC Engineering Services Pty Ltd (1995) 14 WAR 239
Burmah Oil Co Ltd v Bank of England [1980] AC 1090
Commonwealth v Northern Land Council (1991) 30 FCR 1
Conway v Rimmer [1968] AC 910
Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335
D v National Society for the Prevention of Cruelty to Children [1977] 1 All ER 589
Fletcher Timber Ltd v Attorney-General [1984] 1 NZLR 290
GE Capital Group Ltd v Banking Trust Co (CA) [1995] 1 WLR 172
Jones v Andrews (1888) 58 LT 601
Legal Services Commission v Trotter (1990) 54 SASR 74
Middleton v Western Australia (1996) 17 WAR 201
National Australia Bank Limited v Saunders (1988) 12 NSWLR 623
(Page 3)
Peat Marwick Hungerfords v Executor Trustee, unreported; SCt of SA; 25 October 1995; Library No BC9502328
Sankey v Whitlam (1978) 142 CLR 1
Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR
Special Minister for State v Quin (1984) 3 FCR 293
Young v Quin (1985) 4 FCR 483
Zarro v Australian Securities Commission (1992) 36 FCR 40
Case(s) also cited:
Alfred Crompton Amusement Machines Ltd v Customs & Excise Commissioners (No. 2) [1974] AC 405
Barton v Csidei & Ors [1979] 1 NSWLR 524
BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756
Bride as Trustee of Pinwernying Family Trust v Bird Cameron, unreported; FCt SCt of WA; Library No 960085; 19 February 1996
Caratti v Golden Mile Fuel Supplies Pty Ltd, unreported; FCt SCt of WA; Library No 950678; 13 December 1995
Duncan v Cammell, Laird & Co Ltd [1942] AC 624
Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566
Montarello v Berkman Capital Finance Pty Ltd (1997) 15 ACLC 556
Niemann v Electronic Industries Ltd [1978] VR 431
O'Toole v Mitcham (No 2) (1978) 3 ACLR 646
Rogers v Secretary of State for Home Department [1973] AC 388
Science Research Council v Nasse [1980] AC 1028
Wilson v Metaxas [1989] WAR 285
(Page 4)
1 JUDGMENT OF THE COURT: This is an application for leave to appeal from an interlocutory decision of a Master delivered on 1 April 1999 refusing the applicant's application for an order that it be entitled to inspect discovered documents in respect of which the respondent has claimed privilege based on public interest immunity.
Background
2 The applicant is the plaintiff in the proceedings. In the action the applicant claims damages against the respondent for breach of contract which it says arises as a result of a decision made by the respondent to remove it from the list of companies quoted on the Australian Stock Exchange. Because this is an interlocutory appeal involving discovery and inspection in the action, it will be convenient to refer to the applicant as "the plaintiff" and to the respondent as "the defendant". We will refer to the Australian Stock Exchange as "ASX".
3 The claim relates to events occurring from around August 1990 (when the applicant was suspended) until its eventual delisting on 18 December 1990. For the purpose of this application it is not necessary to set out the specific factual background giving rise to the action. It is adequately summarised in the reasons for decision of the learned Master delivered 1 April 1999 at 5 to 7 of the appeal papers. Following the completion of the defendant's discovery, the plaintiff applied to the Master for an order for discovery and inspection of documents over which the defendant claimed privilege.
4 Before dealing with that application we should say something about the nature of the defendant's discovery. The discovery was given in two parts. The part of particular relevance is that provided by the affidavit of Deborah Gail Hambleton, sworn 28 November 1997. Annexed to this affidavit is a list of documents in respect of which the defendant has claimed public interest privilege. The Master found that the list could be separated into five categories. The first category contained confidential surveillance reports from the Australian Securities and Investments Commission and its predecessor, the National Companies and Securities Commission (the "NCSC") concerning matters arising from the ASX's surveillance of the market. These reports were produced between 28 March 1990 and 8 June 1990. The second category was described as "Attachments to surveillance reports". The attachments consist of confidential correspondence between the ASX and stockbrokers relating to matters the subject of the surveillance reports. The third category contains confidential correspondence between the ASX and the NCSC
(Page 5)
- between 9 April 1990 and 7 November 1990 directly relating to one or other of the surveillance reports. The fourth class is described as confidential notes made by members of the ASX's market surveillance division during the course of its market surveillance activity. The final category is said to be reports on investigation into share trading activities dated 2 July 1990 and 25 July 1990.
5 The Master found that the defendant had properly claimed privilege on the basis of public interest immunity and dismissed the plaintiff's application. The plaintiff appealed to the Full Court against the Master's decision. This application came before the Full Court on 25 August 1998. At the commencement of that hearing the court raised a question as to the adequacy of the description of the documents over which privilege was claimed in the discovery affidavit. A question also arose whether discovery should be limited to those documents that were "directly relevant". The court allowed the appeal and made the following order:
"1. …
2. The order of the learned Master made on 8 December 1997 be varied as follows:
(a) The Defendant shall, by 6 October 1998, provide a list of those documents for which public interest immunity is claimed and which are directly relevant to any of the matters in question in the suit.
(b) The said list shall enumerate the documents in a convenient order and the documents shall be described sufficiently to enable each to be identified.
(c) The list shall, in regard to each document enumerated, state whether privilege on grounds of public interest immunity is claimed for the entire document or only parts thereof and identify the issue or issues on the pleadings to which the document is directly relevant.
(d) Where such privilege is claimed for the entire document, the grounds of such claim are to be fully set out.
(e) Where such privilege is claimed for only parts of a document, each particular part said to be privileged is to be identified and the grounds of each claim for privilege are to be fully set out.
(Page 6)
- (f) In so far as there may be documents in respect of which only part is claimed to be privileged, those parts which are not subject to privilege claims are to be made available for inspection by 20 October 1998.
(g) If claims for privilege are based on the need not to disclose the identity of informers or investigators, or confidential methods of investigation, those parts of the documents that reveal such material can be concealed from the Plaintiff.
(h) The Defendant shall by 6 October 1998 file an affidavit or affidavits by an appropriate person or persons verifying the list referred to in paragraph (a).
(i) Any dispute that arises as to the privilege claimed, or to any other issue concerning discovery of the documents for which public interest immunity is claimed, shall be determined by the Master.
… "
6 In accordance with par 2(h) of the orders of the Full Court the defendant filed the affidavits of James Hunter Berry and Alan Joseph Shaw sworn 6 December 1998. Shaw is the National Manager of the defendant, having held that position since May 1998. He is a qualified legal practitioner. Berry is the defendant's Surveillance Manager, a position he has held since 1989. He reports directly to Shaw. The affidavits of both Berry and Shaw are specific and detailed and comply with the orders of the Full Court. The defendant repeated the claim of privilege and gave more detail both as to the description of the documents and the basis on which public interest immunity was asserted.
7 Following the filing of the affidavits of Berry and Shaw, the plaintiff sought to inspect the parts of the documents over which privilege was not claimed. The defendant had "blacked out" those parts of the document over which privilege was claimed and "greyed out" the parts of the documents the defendant claimed were not directly relevant. There was then nothing left of the substantive contents of those documents. In other words, in almost every document the only parts disclosed were the date, names and addresses to whom the letters were addressed, a number of headings and the salutation.
(Page 7)
8 As a result the plaintiff filed a chamber summons dated 2 February 1999 seeking an order that it be entitled to inspect documents over which the defendant claimed privilege or alternatively that the defendant produce the documents to the court for inspection so as to test the claim of privilege. When the matter came before the Master the plaintiff pursued only the alternative claim, namely that the documents be produced for inspection by the court to enable it to determine the validity of the defendant's claim.
9 The plaintiff's application was made under O 26 r 12, which is in these terms:
"(1) Where –
(a) …
(b) in any list of documents supplied on discovery,
a party claims privilege the party requiring production or discovery may traverse the claims to privilege by adducing evidence either that the claim to privilege is unfounded or mistaken, but in the absence of any evidence to that effect the claim to privilege shall be sustained.
(2) In determining any objection on the ground of privilege to the production or discovery of any document or class of document the Court may inspect the document."
10 At the hearing the plaintiff pointed out that the defendant had failed to disclose nearly all the contents of the discovered documents and that there was material, namely those parts of the documents that were blacked out, which was directly relevant to the issues in the action. This, the plaintiff contended, was evidence capable of supporting the assertion that the claim to privilege was unfounded. The plaintiff did not adduce any further evidence by way of affidavit to support the assertion. In addition to its submission with respect to the degree of disclosure, the plaintiff also submitted that the claim to privilege should not be sustained in this case as the person responsible for providing the affidavit in support of the claim was not the appropriate person to do so. Because of this the Master should not accept, without inspecting the documents, the affidavit as conclusive evidence supporting the defendant’s claim. The response of the defendant was that the plaintiff had not adduced any evidence that the claim was unfounded or mistaken and was not, therefore, entitled to an
(Page 8)
- order for inspection as it had not satisfied the requirements of O 26 r 12(1).
11 The Master dismissed the plaintiff’s application for inspection by the court. The Master, in accordance with the defendant's submission, found that the plaintiff had failed to provide any evidence to support its contention that the claim to privilege was unfounded or mistaken pursuant to O 26 r 12(1). As a result the defendant’s claim to privilege was sustained and the plaintiff is unable to have access to material which is directly relevant to issues in question in its case. The Master's reasoning is summarised in this passage:
"In Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1, Seaman J, dealing with an attack on a claim of privilege, said (at 16):
'In my opinion the second defendant made its application under O 26, r 12 which requires that a claim to privilege must be displaced by evidence. If that is not done, a properly formulated and supported objection to produce a listed document will be upheld: see Smith's Weekly Publishing Co Ltd v Sunday Times Newspaper Co Ltd (1923) 31 CLR 552 at 562.
I have not understood from the judgment of the majority in Grant v Downs (1976) 135 CLR 674 (at 689) that it is for the party claiming privilege to show that the documents for which the claim is made are privileged to mean more, in the context of an application under O 26, r 12, than that the claimed privilege must be properly formulated and supported by affidavit. In my opinion it is for the defendant to establish by evidence that the claim as formulated is not a good claim to privilege.'
That, in my view, effectively disposes of the plaintiff's application. As I have said, the claim for privilege has been formulated with some care. The fact that the result of the claim for privilege is that large parts of the documents are unavailable to the plaintiff cannot of itself amount to evidence that the claim for privilege is unfounded or mistaken. It is up to the plaintiff to provide some evidence, direct and admissible, to support its contention. They have completely failed to do so. In my view there is no basis upon which I should look at the documents. I
(Page 9)
- am certainly empowered to do so by O 26 r 12(2). But it seems to me that before inspection takes place the party attacking privilege would need to discharge, if not entirely, then at least in part, the evidentiary onus that rests upon the party who challenges the privilege to adduce evidence which, if accepted, is reasonably capable of supporting a view that the claim to privilege is unfounded or mistaken: see Brambles Holdings Ltd v WMC Engineering Services Pty Ltd (1995) 14 WAR 239 at 247; Alcoa of Australia v State Energy Commission of Western Australia, unreported; SCt of WA: Library No 960727; 20 December 1996. There is no basis in any of the authorities for simply challenging a claim for privilege and asking the court to look at the documents and decide whether or not the claim is valid. Apart from such an approach not being justified by the wording of the rule and being contrary to long established practice it is a process which, if adopted, would be frought [sic] with practical difficulty: see G E Capital Corporate Finance Group Ltd v Bankers Trust Co [1995] 1 WLR 172 and Peat Marwick Hungerfords v Executor Trustee, unreported; SCt of SA (Olsson J); 25 October 1995."
The Grounds of Appeal
12 On 22 April 1999 the plaintiff filed the draft notice of appeal against the decision of the Master. The defendants also filed a notice of contention under O 63 r 9(2). We will deal first with the plaintiff's application. The grounds on which the plaintiff seeks to challenge the decision are set out in the amended draft notice of appeal dated 30 April 1999 and are as follows:
"4. The learned Master was in error in holding that:
(a) It was necessary for the Applicant to produce evidence extraneous from the affidavit of documents itself and the documents produced pursuant to that affidavit that the claim of privilege was unfounded or mistaken, before the Court would accede to the request of the Applicant that it inspect the documents produced for inspection pursuant to the affidavits by Alan Joseph Shaw and James Hunter Berry sworn 6 December 1998, to verify the concealment of contents of such documents was carried out were in accordance with the order of the Full Court on 25 August 1998.
(Page 10)
- (b) There was no evidence to challenge the assertions made in the said affidavit that the concealment of the contents of the documents produced for inspection had been correctly administered in accordance with the Full Court order; and in not holding there was evidence before the Court sufficient to base the claim that the Court should inspect the documents to determine if the Full Court order was correctly complied with; that evidence including:
(i) copies of the documents produced for inspection showing all of the same concealed; so that there was effectively no disclosure of contents at all;
(ii) the statements in the affidavits of the said Shaw and Berry that the concealed portions were "directly relevant" to issues in the action;
(iii) the statement in the said Berry's affidavit in relation to the surveillance reports discovered that concealment of the directly relevant parts of the document for which privilege is claimed will destroy the sense of the remainder of the document; and thereby concealed in such documents more than was authorised to be concealed by the Full Court order.
(c) The claim for privilege made by a subordinate officer of the defendant was appropriate and there was no basis, in the circumstances for the Court to inspect the documents to verify [whether] concealment of contents of such documents (which were admittedly directly relevant to the issues in the action) was done in accordance with the order of the Full Court on 25 August 1998."
13 The plaintiff contends that the Master erred in finding that where a party seeks inspection under O 26 r 12(2) on the basis that a privilege claim is unfounded under O 26 r 12(1)(b), there is a requirement that the party seeking inspection satisfy the court by way of some additional extraneous evidence in affidavit form that the claim to privilege is unfounded. The plaintiff submits that for the purpose of adducing evidence as contemplated in O 26 r 12(1)(b) it was not necessary to produce any extraneous affidavit evidence as there was sufficient evidence already before the court capable of supporting its assertion that the claim to privilege was unfounded.
(Page 11)
14 We think the issues to be determined in this appeal can be described in this way:
(1) Is there a threshold test to be satisfied before a court can exercise its discretion to inspect documents for the purpose of determining whether a claim for public interest immunity has been made out?
(2) In exercising the discretion what form of evidence is required to satisfy the test?
(3) If the discretion is exercisable in this case, in its application before the Master, did the plaintiff satisfy the evidentiary requirement?
Public Interest Immunity -The Relevant Legal Principles
15 The entitlement of a person or body to refrain from disclosing a document on public interest grounds is, strictly speaking, an immunity rather than a privilege. However, it is often referred to as a species of privilege and, in general terms, similar considerations apply. The parties approached this application by reference to O 26 r 12 and that is the way we will deal with the appeal. It may be that a court also has an inherent jurisdiction to inspect documents that are the subject of a public interest immunity claim.
16 The relevant legal principles that apply to a claim to public interest immunity were considered by the High Court in Sankey v Whitlam (1978) 142 CLR 1 and confirmed in Alister v The Queen (1984) 154 CLR 404. The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However, the general rule will not apply where the court is of the opinion that the public interest in the fair administration of justice outweighs the interest giving rise to the immunity. The rationale to this principle was summarised in the judgment of Gibbs CJ in Alister where the Chief Justice, in referring to Sankey,said at 412:
"…. when one party to litigation seeks the production of documents, and objection is taken that it would be contrary to the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely, whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld and to decide which of those aspects predominates. The final step in
(Page 12)
- this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration."
17 There are comments to the same effect in Zarro v Australian Securities Commission (1992) 36 FCR 40 at 45.
18 The mere fact that a claim of privilege may be asserted by a party is not conclusive. In all cases it is the duty of the court to decide whether a document should be produced or may be withheld: Sankey at 38;see also Alister; Commonwealth v Northern Land Council (1991) 30 FCR 1 (which we will call "Northern Land Council (FCt)". It is also clear that the court has the power to prevent disclosure of a document the production of which would be contrary to the public interest even if no claim is made by a Minister or other high official that its production be withheld: Sankey per Gibbs ACJ at 44; Conway vRimmer [1968] AC 910 per Lord Reid at 950. However, while the court has the power to intervene if it appears that the public interest requires disclosure it would only be in exceptional circumstances that it would do so when it was clear the relevant official had considered the question and decided that no objection should be taken: see Sankey per Gibbs ACJ at 46.
19 When disclosure is objected to on the basis that a document is subject to a claim to public interest immunity the court may inspect the documents to assist the assessment as to whether the claimed public interest should yield to the public interest in the fair administration of justice. However, the question of what, if any, threshold test must be satisfied before the court will inspect has been the subject of differing pronouncements by various courts. There has emerged a difference of approach between the English and Australian cases as to what must be established before the court will make an order for inspection.
20 The House of Lords in Conwayfirst enunciated the principle that an objection to the production of documents on the ground that disclosure would be against the public interest was not conclusive. The decision suggests a relatively broad approach with regard to the court’s power to inspect documents. In Conway it was held that no order should be made for the disclosure of documents in respect of which a prima facie valid claim for immunity has been made, except where the court is satisfied that disclosure is necessary in the interests of justice. To be so satisfied the court may need to inspect the documents to find out what they contain. The practical effect of this is that the party seeking to withhold the documents bears the burden of showing that it is in the public interest that
(Page 13)
- documents be withheld: D v National Society for the Prevention of Cruelty to Children [1977] 1 All ER 589 at 619.
21 Subsequent decisions have seen the House of Lords move away from the principle set down in Conway and in effect reverse the onus so that, generally speaking, inspection is not ordered unless the party seeking disclosure of documents can show that there is a real chance the document will materially assist its case: Burmah Oil Co Ltd v Bank of England [1980] AC 1090 at 1129. In Air Canada v Secretary for State for Trade [1983] 2 AC 394 it was held that in order to persuade the court to inspect the documents it must be shown to be "on the cards", "likely", "very likely" or "reasonably probable" that the documents would contain material information likely to assist the applicant's case: per Lord Fraser at 435, Lord Wilberforce at 439. It appears the rationale behind the imposition of this more restrictive approach to inspection is to avoid a situation where the court's power to inspect would result in it becoming embroiled in "fishing" expeditions.
22 In Australia, the High Court has put the issue in terms of a broad discretion whether the court should inspect documents before deciding on an exclusion claim. In Sankey Gibbs ACJ said, at 46:
"… the power of the court to inspect documents privately is clear, and once a court has decided, notwithstanding the opposition of a Minister, that on balance the document should probably be produced, it will sometimes be desirable, or indeed essential, to examine the document before making an order for production: see Conway v Rimmer."
23 It seems that his Honour's comment was directed mainly to a challenge to the privilege claim on the basis of the contents of the document rather than to the situation where the issue was whether the document fell into a "class" of documents to which privilege would usually attach. In the latter instance it would be less usual to order inspection. The issue raised in this case relates more to the content of the documents rather than to their general categorisation. Accordingly, the dictum is directly applicable.
24 In Attorney General (NSW) v Stuart (1994) 34 NSWLR 667 at 684 the court, while acknowledging the role of inspection, expressed the view that in order to prevent "fishing" expeditions a party should demonstrate that it had a legitimate need for the document. In Zarro the Full Federal Court rejected the argument that there should be inspection only if the
(Page 14)
- government secrecy claim is presumptively good. The court pointed to the broad nature of the court’s discretion and noted that such a strict requirement was inconsistent with the court’s ability to take and pursue the public interest point itself.
25 Other Australian cases have shied away from the approach to private inspection adopted in the more recent English authorities such as Burmah Oil and Air Canada. In Alister (which was a criminal case) Gibbs CJ (at 414) and Brennan J (at 453 - 56) referred to Burmah Oil and Air Canada but noted that they were civil cases. In Alister the court ruled that the trial Judge should not have set aside the subpoena for production and ought to have inspected the documents that had been sought. However, there is no indication that their Honours were setting down any binding criteria for civil cases: see Northern Land Council (FCt) at 37.
26 In a number of cases it has been suggested that for the purpose of inspection the only threshold test to be applied is that the documents be relevant. The reasoning behind such an approach was summarised by Debelle J in Adelaide Brighton Cement v South Australia, unreported; SCt of SA; 6 September 1999; BC9905730 at 6:
"There is a question whether the applicant for production of documents must satisfy some threshold test before the court inspects the documents. Plainly, the documents must be relevant. The question is whether any further or more stringent test is necessary. That question was examined by Gibbs CJ in Alister v The Queen … , by Cox J in Legal Services Commission v Trotter … and by Toohey J in the dissenting judgment in Commonwealth v Northern Land Council [(1993) 176 CLR 604]. Reference should also be made to Conway v Rimmer, Burmah Oil Co Ltd v Bank of England, Air Canada v Secretary of State for Trade, Fletcher Timber Ltd v Attorney General and Middleton v State of Western Australia. As Toohey J pointed out in Commonwealth v Northern Land Council at 634 - 35, the process of discovery (in this court, the list of documents) demonstrates the existence and relevance of the documents to the issues in the action. The application for production for inspection is a usual concomitant of the process of discovery. It would seem, therefore, that where there is a claim for privilege on the grounds of public interest immunity, the court should without more inspect the documents for the purpose of weighing the competing public interests."
(Page 15)
27 In Middleton v Western Australia (1996) 17 WAR 201 Steytler J, with whom Murray and Anderson JJ agreed, accepted that there is no threshold test over and above the question of relevance necessary to enliven the jurisdiction to inspect.
28 Having said that, we are not at all sure that we would go to the extent advocated by Debelle J in Adelaide Brighton Cement in saying that once relevance is established "the court should without more inspect the documents for the purpose of weighing the competing public interests". We say this for a number of reasons. First, as was pointed out in Northern Land Council (FCt) at 37, whatever else may be said about the more recent English authorities, the observation that before inspecting documents a judge must have some concrete ground for belief which takes the case beyond a mere fishing expedition applies in this country. It is trite to say that mere relevance does not necessarily render a document admissible. It may yet fall within one or more of the exclusionary rules. Enough may be known about the document and the circumstances to show that it could only be of peripheral relevance and that the policy underlying the public interest immunity is so powerful that the balancing exercise must inevitably be decided in favour of latter. In such a case, inspection would be pointless. Secondly, so much depends on the rules of court, which vary from jurisdiction to jurisdiction. Alister was, as we have already said, a criminal case. Legal Services Commission v Trotter (1990) 54 SASR 74 and Adelaide Brighton Cement arose in South Australia, where the relevant rules do not contain a provision similar to O 26 r 12(1). Nor, so far as we have been able to ascertain, do the New Zealand rules, which would have governed the application in Fletcher Timber Ltdv Attorney-General [1984] 1 NZLR 290, and nor do the Federal Court Rules (O 15). Finally, this approach does not give sufficient weight to the pronouncement of Gibbs ACJ in Sankey, at 46, that "once a court has decided, notwithstanding the opposition of a Minister, that on balance the document should probably be produced" private inspection may occur.
29 We think the criteria for the exercise of the jurisdiction to carry out a private inspection and for the balancing exercise to determine which of the competing public interests should prevail are related. This arises from the conjunction of O 26 r 12(1), which deals with challenge to a claim of privilege, and O 26 r 12(2), which deals with inspection in the course of determining such a challenge. That the criteria are related has also been accepted in other cases: Conway at 953; Northern Land Council (FCt) at 37.
(Page 16)
30 In our view, the position in Western Australia, at least in relation to public interest immunity based on the contents of documents, is as follows. The discretion conferred by O 26 r 12(2) to carry out a private inspection of documents in the course of an application for production under O 26 r 12(1) is of the broadest kind. Before the discretion is enlivened, the court must be satisfied that the documents are relevant to matters in issue. Beyond that it is not necessary, and nor would it be desirable, to attempt a definition of a threshold test. However, in exercising the discretion the judicial officer must not lose sight of the fact that the power to inspect exists for the purpose of deciding whether the claim of privilege is "unfounded or mistaken". In a case where the documents are prima facie immune from compulsory disclosure but are relevant to matters in issue in the litigation the court must go on to conduct the balancing exercise described in the authorities. 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.
Onus and Evidence in a Challenge Under O 26 r 12(1)
31 There is ample authority for the proposition that documents within the possession of an investigative and law enforcement agency (such as the Australian Securities Commission) relating to investigations and possible offences may fall within the public interest immunity: Zarro at 46; Boys & Ors v Australian Securities Commission & Ors, unreported FCA; 9 May 1996; BC9601744 at 6 - 7. The defendant is in a slightly different position as it is not a "law enforcement agency" in the same sense. However, it has well-recognised investigative and regulatory functions in the securities industry. The roles that it carries out have statutory recognition: see, for example, Pt 7.1 A and Pt 7.2 of the Corporations Law. We do not think it is in issue in these proceedings that documents of a confidential nature which record information received by the defendant or generated by it concerning possible irregularities and recording the course or possible course of investigations into the alleged irregularities could be the subject of public interest immunity.
32 In dismissing the plaintiff’s application for inspection the Master relied primarily on the decision of Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1 at 16. He saw that decision as authority for the proposition that a properly formulated claim to privilege can be displaced only by evidence which
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- establishes that the claim is not a good claim. The Master found that while he had the power to inspect the documents there was no basis on which he should exercise the discretion to do so because the plaintiff had not provided any evidence to support its contention that the claim to privilege was unfounded and mistaken.
33 Under O 26 r 12(1)(a), in the absence of evidence to the contrary, an apparently proper claim to privilege will be sustained. There is little doubt that the claim for privilege by the defendant was formulated with care and the affidavits in support sworn by Berry and Shaw clearly address all the issues required for such a claim. Even so, O 26 r 12(1)(a) makes it clear that such a claim can be traversed if the objecting party adduces evidence capable of supporting its objection that the claim is unfounded or mistaken. In his reasons for decision the Master found that the plaintiff’s claim that the extent to which parts of the document were unavailable supported its claim that the privilege was unfounded could not in itself amount to evidence that the claim for privilege was unfounded. The Master found that before inspection could take place the plaintiff would need to have provided evidence supporting its claim that the privilege was unfounded. The Master expressed the view that on the authorities there was no basis for simply challenging a claim and asking the court to look at the documents to decide whether the claim was valid.
34 The plaintiff accepts that for the purposes of challenging a claim to privilege under O 26 r 12(1)(b), the evidentiary onus to adduce evidence which, if accepted, is reasonably capable of supporting the view that the claim to privilege is unfounded or mistaken, is on the plaintiff: see Brambles Holdings Ltd v WMC Engineering Services Pty Ltd (1995) 14 WAR 239 at 247; Southern Equities Corporation Ltd at 16. However, the plaintiff contends that the Master erred in concluding that the plaintiff had failed to adduce evidence capable of supporting its contention. The plaintiff submits that given the circumstances of this case it was not necessary that it adduce extraneous evidence in the form of an affidavit when the evidence capable of supporting its contention was contained in the affidavit of discovery and the privileged documents that were already before the court. The plaintiff contends that the Master was in error in finding that the plaintiff had not satisfied its evidentiary onus under O 26 r 12(1).
35 It seems to us that the fundamental issue to be determined in this application is whether the evidence sought to be relied on by the plaintiff was sufficient to discharge its evidentiary onus under O 26 r 12(1)(b) and
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- if so whether the Master erred in this case by exercising his discretion and refusing to inspect the documents.
36 From the reasons it appears that the Master took the view that for the purpose of satisfying its evidentiary burden the defendant needed to provide to the court direct evidence in the form of documents or affidavits sworn by someone on its behalf to support its contention. Brambles Holdings Ltd supports the proposition that inspection would require the party who challenges the privilege to adduce evidence to support the view that the claim is unfounded. However, it did not address the issue of what form the evidence must take. Further, while it is an express requirement to a claim of privilege that the party asserting the privilege do so in an affidavit there is nothing in the Rules which expressly requires that the evidence to be adduced by the objecting party be in the form of an affidavit presented by someone on its behalf.
37 In most cases the appropriate and generally accepted approach will be that evidence supporting a claim that privilege is unfounded or mistaken be provided by way of affidavit by the party seeking production. However, as a matter of principle we can see no reason why the court, in the absence of an affidavit from the objecting party, should not consider other evidence already before the court which may support the contention that the privilege is unfounded or mistaken. That is not to say that a party is entitled to challenge a claim to privilege and have the court, in the absence of any evidence to support the challenge, inspect documents. In Jones v Andrews (1888) 58 LT 601 Cotton LJ said, at 604:
"The oath of the party giving discovery is conclusive, unless the court can be satisfied – not on a conflict of affidavits, but from documents produced or from anything in the affidavit sworn in behalf of the defendant, or by any admission by him in the pleadings, or necessarily from the circumstances of the case - that the affidavit does not truly state that which it ought to state."
- There are comments to similar effect in GE Capital Group Ltd v Banking Trust Co (CA) [1995] 1 WLR 172 per Hoffman LJ at 174.
38 Some of the confusion may arise from the word "adduce". We accept that the natural and ordinary meaning of the word "adduce" would suggest that it is for the party concerned to lead the evidence in the conventional fashion. However, the word "adduce" as used in O 26 r 12(1) must be considered in its context. We think it means no more than
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- that the onus rests on the party challenging the claim of privilege to show that the claim is unfounded.
39 In our opinion the court is entitled to look at any evidence before the court that may be capable of raising doubts as to the authenticity of the privilege claim. The fact that the court has the power to inspect and exclude evidence under the public interest privilege on its own motion, that is, in circumstances where no privilege is asserted, also supports the view that the court is entitled to exercise its discretion to inspect where neither party has adduced extraneous evidence to support such a claim.
40 In our view it is open to an applicant to rely on the evidence already before the court in support of its contention that the claim to privilege was unfounded or mistaken. If there is evidence before the court that could support the challenge it is not essential that the applicant provide a separate affidavit.
41 From the Master's reasons it can be seen that the court was aware of the basis of the objection put forward by the plaintiff and of the documents in respect of which the objections were made. We think it can be said that the plaintiff's objection lacks detail. There is also the question whether the evidence adequately satisfies the requirement on an objecting party specifically to identify the documents in question and spell out as precisely as possible the inferences said to arise and the asserted bases of those inferences: Peat Marwick Hungerfords v Executor Trustee, unreported; SCt of SA; 25 October 1995; Library No BC9502328 per Olsson J at 5. But this goes to the adequacy of the plaintiff's case rather than to the jurisdictional question whether it is entitled to advance the claim.
Did the Plaintiff Satisfy the Evidentiary Requirement?
42 It follows that the next question to be determined is whether the Master was wrong in not giving greater weight to the evidence which the plaintiff contends to support its objection. That evidence is, of course, the extent of the claims to privilege which were disclosed on the face of the documents produced, the fact that the parts disclosed were directly relevant to issues pleaded and, finally, that the claims to privilege were made by an officer of a party to the proceedings.
43 The plaintiff submits that the extent to which the defendant has claimed privilege over the documents can in itself provide evidence that the claim is unfounded. This is because, the plaintiff submits, it is
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- unlikely that all the amounts blacked out could refer to names of informers and methods of surveillance and investigation as claimed in the affidavits of Berry and Shaw. The plaintiff argues that given the nature and length of some of the documents it is difficult to accept that those documents would not contain any material of relevant substance but not relating to the privilege claimed. In other words the plaintiff contends that the degree to which privilege is claimed is enough to raise sufficient doubt so as to warrant inspection.
44 A claim of privilege, unless overturned or waived, will always prevent a plaintiff from seeing the contents of the documents. In this case the plaintiff knows the documents contain information directly relevant to its case. However, because it has not seen the documents it is unable to say whether they are likely to affect the outcome of the case, let alone assist its case. Given the plaintiff's inability to obtain any information it is difficult to see how the plaintiff could adduce evidence independent of the documents themselves to support its objection. In this case the plaintiff relies on the affidavits of discovery and the documents themselves to support its objection. The defendant's claim makes it difficult for the plaintiff to challenge the assertion of privilege. The difficulty extends both to the challenge on the basis that the privilege is unfounded and then, in the event that the claim of privilege is not declared to be unfounded or mistaken, the balancing exercise seeking disclosure in the public interest.
45 The defendant has made a claim of privilege in the proper form by way of affidavit. It is, as we have said, a claim formulated with some care. It was initially advanced by Hambleton in her affidavit of 28 November 1997, although in a way that the Full Court found to be deficient due to a lack of specificity in the description of the documents. Hambleton is a solicitor who is (or at least was at the time she swore the affidavit) employed by the defendant. In her affidavit Hambleton described the documents the subject of the claim (being those set out in Pt IV of the list of documents) as: "produced or obtained by the defendant in the course of its public function as a market regulator which are privileged from disclosure in the public interest".
46 In his affidavit Shaw states that he has read the pleadings and is familiar with the affidavit of discovery sworn by Hambleton. He then goes on to list the documents that are the subject of the claim. They are referred to as "the Pt IV documents". Shaw goes on to state that the Pt IV documents contain material that is directly relevant to the matters in question in the action. Shaw then outlines the methodology which he employed in assessing the privilege claim. The documents are described
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- in Pt 1 of annexure "A" to his affidavit. That part also described the parts of the individual documents that he believes are directly relevant and the paragraphs of the pleadings to which he believes they relate. An example of the process adopted by Shaw is set out at 11 of the Master's reasons (32 of the appeal papers).
47 The affidavit of Berry follows on from the affidavit of Shaw and must be read in conjunction with it. In his affidavit Berry acknowledges the affidavits of both Hambleton and Shaw and the statements made by Shaw that the documents are directly relevant. Berry then identifies the parts of the documents in respect of which public interest privilege is claimed and the grounds on which it is claimed. The claim is advanced specifically in relation to each part of an individual document identified as containing material that is directly relevant. The privilege is asserted on a combination of grounds (not all of which are asserted in each case) on the basis that disclosure will:
"(a) reveal the identity of informants;
(b) reveal the methodology of ASX's Market Surveillance Division;
(c) undermine the frankness of
(i) informants who will become less likely to fully and frankly provide information to ASX if there is a possibility that their identity and the nature of information supplied will be disclosed at a future date; and
(ii) ASX surveillance officers in expressing views and opinions in surveillance reports if there is a possibility that their views and opinions will subsequently be scrutinised if disclosed;
(d) constrain ASX in the performance of its public function as a market regulator and a watchdog for the reasons in (c)(i) and (ii); and
(e) undermine the ASIC's ability to function as a corporate regulator if the information which it receives from ASX is compromised in its quality or frankness."
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48 In relation to the surveillance reports, there is a separate head of the claim based on the assertion that the whole of the documents should be exempt from disclosure because concealment of the directly relevant portions will destroy the sense of what remains. We will deal with this issue separately because it arises under the defendant's notice of contention.
49 There is nothing suspect, unusual or inherently improbable in the way that the claim is advanced and described in the affidavits. Three persons with personal knowledge of the action have scrutinised the documents and formed a view on them. Two of those persons are legal practitioners. The documents are carefully described. Their relevance to particular issues that arise on the pleadings is described with particularity. No argument was addressed to the court by the plaintiff to the effect that the defendant's description of the matters in issue on the pleadings was inaccurate or incomplete. We accept that the nature of the information contained in the relevant parts may lead to the identity of an informer being disclosed. It is, we think, likely that at least some of the documents, for example the surveillance reports, would contain information about the method of investigation employed during the inquiry. This could have an effect extending well beyond the contest between these parties in relation to the plaintiff's claim for damages arising out of its suspension and de-listing. It is for this reason that we said earlier that we thought the contents of the documents would prima facie qualify for exemption under this head of privilege.
50 The plaintiff points to the concession of the defendant that the documents contain relevant material and says that this justifies its request that this alone is sufficient to compel production. We have already expressed a view on this proposition. Relevance will always be an important factor but we are not sure that it, alone, provides an answer to the question.
51 The next issue raised by the plaintiff is the extent of the material said to be immune from disclosure. We were provided with a copy of the documents in the form that they were presented, that is, with the "blacked-out" and "greyed-out" markings. We think it is fair to say that most of the material is "greyed-out" rather than "blacked -out". The exceptions to this are the parts under the heading "Attachment B" in the several surveillance reports and the notes of the Market Surveillance Division. When it is appreciated that, as a result of the earlier ruling of the Full Court, discovery in this respect was limited to documents that were "directly relevant " to a matter in issue it is perhaps a little easier to
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- accept that much of the material may fall into the "irrelevant" category, so understood. If the claim was limited to the sensitivity of information seriously likely to disclose the identity of informers the argument about the amount of material covered by it would be more persuasive. But it is not so limited and the ambit is broadened significantly by the desire of the defendant not to disclose matters that go to its investigative techniques. On balance we do not think the extent of the parts said to be exempt from disclosure has quite the significance contended for by the plaintiff.
52 It is here that the evidentiary onus becomes critical. As we have already said, we have no difficulty with the proposition that the plaintiff is entitled to rely on evidence actually presented by the defendant. But it does not alter the fact that the plaintiff bears the burden of establishing that the prima facie effect of an affidavit of discovery should be displaced. Put another way, it is for the plaintiff to establish that the claim of privilege is unfounded or mistaken. In this case the plaintiff has relied solely on the various affidavits of discovery sworn on behalf of the defendant. We mean no criticism of the plaintiff in saying that. The plaintiff believes that there is no other material on which it could rely. This has to be accepted, although it will not be so in every case. We are not persuaded that there is sufficient in those affidavits to excite the attention of the court to the view that the process of determining the challenge to the immunity claim will be aided by inspection.
53 In essence, the reason why the "greyed-out" portions need not be disclosed is because they are irrelevant to any matter on which issue has been joined. Accordingly, those portions could never play any part in the proceedings. That is the claim that the defendant has made and there is insufficient in the materials before the Court to justify further investigation as to its accuracy.
54 We wish to make two other points. We would be loath to place the court in a position where it was called on to inspect documents to ascertain whether the defendant's contention that material was not directly relevant was sustainable. Practitioners make those judgments every day. If a document is not relevant it is inadmissible and it need not be discovered. That is something that applies whenever a party compiles a list of documents. The court becomes involved only if there is evidence pointing to the fact that a document that should have been discovered has been omitted from the list. That is not the case here.
55 The final point is this: We accept that the result of this appeal will leave the plaintiff in a position where it is, or at least feels, that it is
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- hampered in its preparation for trial. But this will always be the case where a claim of privilege (public or private) is successfully advanced.
Did the appropriate person from the ASX swear the affidavit?
56 Ground 4(c) proceeds on the basis that the Master erred in finding that a subordinate officer of the ASX was an appropriate person to swear the affidavit claiming public interest immunity.
57 The plaintiff conceded that while the former practice required a claim for public interest immunity to be made by a public officer being either the Minister or the Head of Department had been relaxed, it had not been so relaxed that privilege may be made by a party accepting an assertion of the officer of an interested party who holds no formal public office and is accountable only to the party for whom the claim is made.
58 It is clear from the authorities that the position of the person asserting public interest immunity on behalf of a government instrumentality is no longer of prime importance: National Australia Bank Ltd v Saunders (1988) 12 NSWLR 623; Young v Quin (1985) 4 FCR 483. Although there is no longer a requirement that a Minister swear the affidavit, the principles behind the claim are clearly expressed in Sankey at 43:
"Before Conway v Rimmer (63) it had become established that an objection to production should be taken by the Minister who is the political head of the department concerned, or failing him by the permanent department head, and that the person takingthe objection should himself have read and considered the documents and formed the view that on the grounds of public interest they ought not to be produced, either because of their actual contents or because of the class of documents to which they belong ... Although an affidavit sworn by a Minister or departmental head is no longer conclusive, it appears to me to be still highly desirable that the person who swears the affidavit should himself have seen the documents in question. Where the claim is that it would be contrary to the public interest to publish the contents of a particular document, it is obviously essential that the person asserting the claim should himself have seen the documents in question. (italics added)"
59 What is clear from the authorities is that the person swearing the affidavit must be familiar with the documents and the matter to which those documents relate. Further, that person has an understanding as to
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- the significance of the claim to privilege and the basis on which those documents fall within the privilege. The issue of what is required of a party swearing the affidavit was considered by the Full Federal Court in Zarro at 50 where Lockhart J said:
"In these days with large government instrumentalities and agencies involved in time consuming and extensive investigations into possible irregularities and offences, great care is required by the bodies themselves in ensuring both that the correct person within the structure of the organisation (that is, a person who knows the facts, has seen the documents and who is preferably at a high level within the organisation) swears the appropriate affidavit claiming public interest immunity and that the claim is not made too widely so as to sweep within its net documents that are not legitimately an essential integer in the investigative process."
61 It is clear from the affidavit of Berry that he has personal knowledge of the documents in question and is responsible for supervision of the surveillance activities of the defendant and did so in 1990 when the documents came into existence. He fulfils the requirements set out in both Sankey and Zarro. Berry has knowledge of the facts, has seen the documents in question, has responsibility over surveillance and holds a relatively high position in the organisation. He is the informed person and the person having official responsibility in the relevant area: Special Minister for State v Quin (1984) 3 FCR 293 at 295.
62 In our opinion the affidavits of Shaw and Berry when read together satisfy the requirement for discovery. We do not accept the plaintiff's complaint that Berry as an officer of the interested party was not an
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- appropriate person to make the claim. We think the most important thing is that whoever swears the affidavit is a person who has considered the documents and who has the required knowledge and association with the documents over which privilege is claimed. If the plaintiff's submission is accepted it would, in all likelihood, mean that a person less informed than Berry and Shaw would be laying the foundation for the claim to the privilege.
Notice of Contention
63 Finally, we propose to deal briefly with the defendant's notice of contention. The respondent contends that the Master erred in finding that public interest privilege cannot be claimed for the whole document where concealment of directly relevant parts of the document for which privilege is claimed will destroy the sense of the remainder of the document. The respondent says that the Master ought to have found that public interest privilege can be claimed with respect to a whole document where concealment of the parts for which privilege is claimed would destroy the sense of the remainder of the document.
64 Public interest immunity can be claimed only with respect to the part or parts of a document disclosure of which would be inimical to the public interest. In other words, it can extend to cover only those parts of a document that contain information which, if disclosed, may cause injury to the public. There are strict limitations on a claim of privilege and a claim should be made only when injury from disclosure is likely. It seems to us the fact that there are parts of a document which are found to be immune from disclosure on public interest grounds provides no basis for withholding the balance of the document under the guise of a public interest immunity claim. To do so would be to extend the ambit of such a claim.
65 The Master found that there may be circumstances where the privileged material and the non-privileged material are so intertwined that the whole document should be privileged. We accept that this may be so. However, that is a different situation from the one contended for by the defendant. It is one thing to assert privilege over a whole document when it is impossible to separate what is and what is not privileged. However, the defendant seeks to extend this position to claim privilege over a whole document where the concealment of the privileged parts would destroy the sense of the remainder. This is not a situation where the non-privileged part is said to be so intertwined with the privileged parts
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- but rather a situation where the remainder when separated from the privileged part will not make sense.
66 The defendant relied on Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335 at 339-342. In Curlex the court discussed the position where disclosure of non-privileged parts of a document would prove impractical or impossible or make the rest misleading. However, we do not read anything said in the judgments as supporting the notion that a claim to public interest immunity privilege could extend to include parts which were not privileged or were not so intertwined that it was impossible to separate them out.
67 It is, we think, one thing to say that it is impractical, impossible or misleading to disclose non-privileged parts of a document. It is quite another thing to say that if the non-privileged material is viewed without the privileged portion it will carry a sense that it would not have done had the whole document been available for scrutiny. That may mean that the non-privileged portion is unintelligible. But that may fall short of it being misleading or inaccurate.
68 We are aware that in G E Capital Corporate Finance Group Ltd v Bankers Trust Co Hoffman LJ said at 175 that a party is permitted to cover up an irrelevant part of a document provided it could do so "without destroying the sense of the rest or making it misleading". But as his Lordship pointed out, he was dealing with discovery, not privilege. In any event, we think the emphasis should be on whether the partial disclosure would make what remains misleading or incorrect rather than unintelligible.
69 In our view, to speak simply of the "sense" of the document is not a sufficiently precise description on which to assert privilege.
Conclusion
70 It may be that the Master approached the matter on an incorrect basis, namely, that the plaintiff had an obligation to present its own evidence rather than simply rely on material prepared by the defendant. Even if that be the case, we are not persuaded that the various affidavits prepared on behalf of the defendant are sufficient to satisfy the test that we have outlined such as to make it appropriate for the Court to carry out a private inspection of the documents.
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71 The plaintiff needs leave to appeal. In order to obtain leave the plaintiff must establish, among other things, that substantial injustice will be caused to it if the decision is allowed to stand. It follows from what we have said that we do not think an injustice has been done in this case. We would, therefore, refuse leave to appeal.
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