Dupont & Chief Commissioner of Police and Anor
[2015] FamCAFC 64
•28 April 2015
FAMILY COURT OF AUSTRALIA
| DUPONT & CHIEF COMMISSIONER OF POLICE AND ANOR | [2015] FamCAFC 64 |
| FAMILY LAW – APPEAL – PUBLIC INTEREST IMMUNITY – SOURCE OF LAW – Objection to the production of documents under subpoena on public interest immunity grounds – Whether claim should be determined according to the common law or the Evidence Act 1995 (Cth) – Where common law applied – Where s 130 of the Evidence Act applies to the “admission into evidence” of a document – Where s 131A extends the scope of the Act in limited circumstances – Where s 131A of the Evidence Act 2008 (Vic) extends the application of s 130 to pre-trial proceedings including subpoenas – Whether s 79 of the Judiciary Act 1903 (Cth) applies to pick up s 131A of the Victorian Evidence Act – Where clear intention that public interest immunity in relation to pre-trial procedures should be dealt with in accordance with the common law – Process for subpoena to produce documents discussed – Legitimate Forensic Purpose discussed – HELD – No error. FAMILY LAW – APPEAL – COSTS – Where the appellant established no appealable error – Where it is appropriate to order costs for the first respondent where the appeal has been entirely unsuccessful – Where the court is not satisfied that it was necessary for the second respondent to participate in the appeal – HELD – Costs order made for first respondent only. |
| Evidence Act 1995 (Cth): ss 126H, 130, 131A Family Law Rules 2004 (Cth) |
| Alister v R (1984) 154 CLR 404 ASIC v P Dawson Nominees (2008) 169 FCR 227 Attorney General v Kaddour & Turkmani [2001] NSWCA 456 Chapman v Luminis Pty Ltd (No 2)(2000) 100 FCR 229 Commonwealth v Northern Land Council (1993) 176 CLR 604 Conway v Rimmer [1968] AC 910 De Winter v De Winter (1979) FLC 90-605 Eastman v R (1997) 76 FCR 9 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038 National Employers Mutual General Association v Waind & Hill [1978] 1 NSWLR 372 Northern Territory v GPAO & Ors (1998) 196 CLR 553 NSW v Public Transport Ticketing Corporation [2011] NSWCA 60 R v Mokbel (Ruling No. 1) [2005] VSC 410 R v Polley (1997) 68 SASR 227 R v Saleam (1989) 16 NSWLR 14 Ragg v Magistrates Court of Victoria [2008] VSC 1 Sankey v Whitlam (1978) 142 CLR 1 Singtel Optus Pty Ltd v Weston(2011) 81 NSWLR 526 Young v Quin (1985) 59 ALR 225 |
| APPELLANT: | Ms Dupont |
| 1ST RESPONDENT: | Chief Commissioner of Police |
| 2ND RESPONDENT: | Ms Unwin |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 9645 | of | 2011 |
| APPEAL NUMBER: | SOA | 66 | of | 2014 |
| ORDERS MADE: | 19 March 2015 and 28 April 2015 |
| DATE DELIVERED: | 28 April 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Johns JJ |
| HEARING DATE: | 5 March 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 August 2014 |
| LOWER COURT MNC: | [2014] FamCA 1003 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Stoikovska |
| SOLICITOR FOR THE APPELLANT: | Moores |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Lethlean |
| SOLICITOR FOR THE 1ST RESPONDENT: | Victorian Government Solicitor, Police Branch |
| COUNSEL FOR THE 2ND RESPONDENT: | Dr Ingleby of counsel with Mr Hutchings |
| SOLICITOR FOR THE 2ND RESPONDENT: | Nicola Hoobin Legal |
Orders made 19 march 2015
The appeal be dismissed.
Orders made 28 april 2015
The appellant pay the costs of the first respondent in the amount of five thousand five hundred dollars ($5,500) within eight (8) weeks.
The Second Respondent's application for costs be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dupont & Chief Commissioner of Police and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 66 of 2014
File Number: MLC 9645 of 2011
| Ms Dupont |
Appellant
And
| Chief Commissioner of Police |
First Respondent
And
| Ms Unwin |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 16 February 2015 Ms Dupont (“the appellant”) seeks leave to appeal against an order of Bennett J made on 26 August 2014. By that order her Honour upheld the objection of the Chief Commissioner of Police (“the first respondent”) to the production of documents pursuant to a subpoena. Although a question arises about whether leave is required, all parties agree that in the event we find merit in the appeal, leave to appeal should be granted.
The subpoena was issued on the appellant’s behalf on 22 July 2014 and sought that the first respondent produce:
The entire investigation file into the conduct of [the second respondent]… including any report/s whether completed or not and including but not limited to all witness statements, recommendations, transcripts of interview or other recordings and notes in relation to any investigation by and not limited to [Inspector B].
It was uncontentious that Inspector B is the Inspector of Workplace Standards for the Police and she had control of documents relating to 42 complaints made by 14 complainants against Ms Unwin (“the second respondent”).
The first respondent objected to the production of the documents and sought that the subpoena be set aside on four bases, namely, that the subpoena lacked legitimate forensic purpose; it was so wide as to be oppressive; its lack of apparent relevance amounted to an abuse of process; and finally because each document within the scope of the subpoena was subject to a claim for public interest immunity and thus should not be produced.
On 26 August 2014, after considering the objection of the first respondent, Bennett J acceded to the application to set aside the subpoena. It is from this order that the appellant appeals.
So as to not delay the final hearing due to commence on 23 March 2015, on 19 March 2015 we ordered that the appeal be dismissed and indicated we would publish our reasons later. These are the reasons.
As we will shortly discuss, in this jurisdiction public interest immunity claims (excluding journalist privilege) are either dealt with in accordance with s 130 of the Evidence Act 1995 (Cth) (“the Evidence Act”) or the common law. Where the claim concerns the admissibility of evidence, s 130 is the governing provision. What might be described as pre-trial procedures invokes the common law. Irrespective of which regime applies the outcome should be the same.
The Court of Appeal in NSW v Public Transport Ticketing Corporation [2011] NSWCA 60 explained that despite the use of different language there is no practical difference between the two regimes. Allsop P (as he then was and with whom Hodgson JA and Sackville AJA) concurred said at [42] of the judgment:
Both the common law and s 130 require two broad stages of analysis: first the assessment of the character of the information or document (as state papers or as relating to a matter of state) and secondly a weighing or balancing exercise to assess the public interest on whether disclosure would prejudice the proper functioning of the government.
We note that although the Ticketing case considered s 130 of the Evidence Act 1995 (NSW) (“the NSW Act”), that provision is identical to s 130 of the Commonwealth Evidence Act and the sentiments expressed by the Court of Appeal in the paragraph above are apposite to the Commonwealth provision. Subsequent cases have affirmed the view that there is no different outcome as to availability of the immunity depending on whether the common law or s 130 applies (Singtel Optus Pty Ltd v Weston(2011) 81 NSWLR 526 at [29]).
Background
By way of brief background to the wider suit between the parties, we note that the appellant and the second respondent are engaged in parenting proceedings in relation to the child of their relationship. The main issues for determination in these substantive proceedings are whether parental responsibility for the child should continue to be shared between the appellant (the biological mother of the child) and the second respondent, and what time, if any, the second respondent should spend with the child. The appellant seeks orders that the second respondent’s name be removed from the child’s birth certificate and that the second respondent not spend any time with the child.
It was submitted on behalf of the appellant that she experienced the second respondent as having “an intimidating, controlling and emotionally manipulative personality” and she believed that the second respondent would subject the child to emotional abuse. The documents sought to be produced by the subpoena relate to an internal workplace police investigation into the second respondent’s professional conduct. The appellant submitted that these documents “have potential value as to the issue between the parties” for numerous reasons, including that the material is relevant to issues around the child’s safety and that it shows a tendency on the part of the second respondent to act in a manner that is the same or similar to conduct alleged by the appellant by reference to other complaints.
The primary judge’s reasons
In her reasons for judgment, Bennett J dealt first with the objection that the subpoena lacks legitimate forensic purpose, secondly with the objection that, in any case, the documents sought are subject to public interest immunity and notwithstanding the public interest in disclosure, ought not to be disclosed and finally with the submission that the subpoena is oppressive and an abuse of process.
Legitimate Forensic Purpose
Her Honour noted at [60] that production of documents pursuant to a subpoena will not be required unless it can be demonstrated that the inspection of the documents serves a legitimate forensic purpose in the case: Alister v R (1984) 154 CLR 404. Having undertaken a broad review of the authorities as to what constitutes a legitimate forensic purpose, her Honour said she would adopt the reasoning in Ragg v Magistrates Court of Victoria [2008] VSC 1 per Bell J, namely, that the party calling on the subpoena must demonstrate a reasonable possibility the documents will materially assist his or her case. Also that in this respect it is necessary to consider the importance of the issue to which it is said the subpoena relates, the importance of the document in question in the determination of that issue and the circumstances of the case as a whole.
In order to determine whether there existed a legitimate forensic purpose for production of the documents, in addition to the evidence contained in an affidavit sworn by Superintendent C, her Honour inspected the 1400 documents produced by the first respondent.
The primary judge noted that the submissions made on behalf of the appellant fell short of identifying with the requisite degree of precision how the documents would materially assist her case [63]. It was submitted on behalf of the appellant that production of the documents sought by the subpoena would serve a legitimate forensic purpose because they may corroborate the appellant’s evidence regarding the second respondent’s controlling and abusive personality. Further, the documents would indicate that the second respondent is not a person with whom the child should have an ongoing relationship or spend time [70]. This submission was rejected on the basis that:
72. In the absence of evidence by an appropriately qualified person (expert) that persons about whom work place complaints are made are poor parents or are abusive in their interpersonal relationships, evidence of the complaints is of very low or perhaps no probative value…
Having rejected the appellant’s arguments as to the legitimate forensic purpose, the primary judge found that for reasons other than those advanced by the appellant, some of the documents sought to be produced by the subpoena could materially assist the appellant’s case. Her Honour said that:
76. …if given access to the documents, [the appellant] would be in a position to identify which members of Victoria Police had made complaints, voluntarily or not voluntarily, and could conceivably approach those members with a view to seeing if there is any relevant evidence to be given by that member.
Even so, of this smaller portion of the documents her Honour was “…only barely satisfied…” that the information might assist the appellant’s case. As she explained:
78. ...If the threshold for demonstrating a legitimate forensic purpose was any higher than “low”, I would not have been satisfied that it had been demonstrated to exist.
Legitimate forensic purpose for some of the documents having thus been established, the primary judge turned her attention to the claim of public interest immunity. As will become apparent, but for the public interest immunity claim, production and inspection would have been ordered in relation to those documents identified as having a legitimate forensic purpose but refused for the balance. Because there is no challenge to her Honour’s findings about whether or not particular documents had or lacked a legitimate forensic purpose, the focus of this appeal is on the manner in which she dealt with the public interest immunity claim in relation to those documents for which a legitimate forensic purpose was established.
Public Interest Immunity
Though her Honour did find a legitimate forensic purpose in the appellant seeking to inspect some of the documents, by application of the common law she found that the claim of public interest immunity should be upheld and the documents should therefore not be produced or inspected [90]. In coming to this conclusion the primary judge found that disclosure of the contents of the documents would be “…highly prejudicial to the ability of Victoria Police to properly receive and investigate complaints against police members…” [86]. The release of the documents would breach the confidentiality of the complainants, undermine confidence in internal disciplinary proceedings, prevent future potential complainants from disclosing complaints due to a fear their comments would be used to generate evidence and ultimately jeopardise public confidence in the investigation of complaints against police members [86]. Consistent with the balancing exercise discussed in Sankey v Whitlam (1978) 142 CLR 1, her Honour balanced the public interest in the avoidance of these types of harm with the public interest in the administration of justice not being frustrated or impaired by withholding documents for which a legitimate forensic purpose had been established. On the basis that production of the documents was unlikely to produce material evidence or lead to material evidence being obtained her Honour was satisfied that the information and documents were not important to the substantive proceedings [87]. She went on to note the important benefit of transparency of process and access to information but found that, in all the circumstances, the harm that would result from the disclosure of the documents “…far outweighs any benefit that would flow from requiring the documents to be produced and allowing them to be inspected” [89].
Oppression or an abuse of process
The submission of the first respondent that the subpoena was oppressive and/or an abuse of process was then considered. The primary judge noted that although the documents sought to be produced were numerous and many hours were expended collating them, that did not itself make the subpoena oppressive [92]. The argument by the first respondent that the remaining documents under consideration lacked potential relevance and their production was sought to embarrass or place pressure on the second respondent was rejected and the claim that the subpoena was oppressive was not made out.
Finally, her Honour turned to whether the subpoena was an abuse of process as submitted by the first respondent who contended that the appellant “…should be taken to have issued her subpoena only for the purposes of seeking information to impeach the [second respondent’s] credit” [94]. That argument was rejected with her Honour going on to find that the subpoena was not an abuse of process.
Evidence act or the common law?
So as to set the scene, it is necessary to set out the framework for the determination of a public interest immunity claim made in relation to proceedings conducted under Part VII of the Family Law Act 1975 (Cth) (“the Act”) (or indeed the Act). The first matter of note is that neither the Act nor the Family Law Rules 2004 (Cth) (“the rules”) contains provisions which govern a claim for public interest immunity.
In proceedings to which the Evidence Act applies (such as these proceedings), s 130 of that Act sets out the test to be applied to a claim of public interest immunity but only when the claim relates to the “admission into evidence” of information or a document. This narrow reach of s 130 of the Evidence Act is evident from the opening words of the provision which we now set out:
(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
In its current form, s 131A of the Evidence Act, in conjunction with s 126H of that Act, extends the reach of s 130 of the Evidence Act to a disclosure requirement which arises from a court process or order but only in relation to what might be termed “journalist privilege” concerning the identity of an informant. It follows that the extended reach of s 130 contained in the Evidence Act has no application in these proceedings.
However, that is not the end of the matter. Section 131A of the Evidence Act 2008 (Vic) (“the Victorian Act”) extends the application of s 130 (indeed most of the privileges found in Part 3.10 of the Victorian Act) of that Act to pre-trial proceedings, including a subpoena to a third party to produce documents. Section 130 of the Victorian Act is identical to s 130 of the Evidence Act. Although these proceedings were heard in Victoria, because by operation of s 4 of the Victorian Act the provisions of that Act apply only to Victorian courts, s 131A of the Victorian Act prima facie does not apply to these federal proceedings.
The current version of s 131A of the Victorian Act is in relevantly similar terms to s 131A of the Evidence Act as originally inserted on 1 July 2006. It follows that up until that point, in federal proceedings privileges operated under a dual regime in that pre-trial proceedings were regulated by the common law and privileges claimed in relation to the admission of evidence were regulated by the Evidence Act. To a considerable extent that regime was changed by the original s 131A of the Evidence Act so that to a significant extent, pre-trial issues were also governed by the Evidence Act.
However, subsequent amendments to s 131A of the Evidence Act narrowed the previously wide reach of that provision so that it now only applies to journalist privilege (Evidence Amendment (Journalists Privilege) Act 2007 (Cth)). The effect of this is that in federal proceedings, claims of journalist privilege made in pre-trial procedures are not regulated by the common law whereas other privileges, including public interest immunity, will be (Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49).
Consideration must thus be given to whether, by virtue of s 79 of the Judiciary Act 1903 (Cth) (“the Judiciary Act”), the Victorian provision is picked up, in effect, as a surrogate law of the Commonwealth. Section 79(1) of the Judiciary Act provides:
(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
In Northern Territory v GPAO & Ors (1998) 196 CLR 553, Gleeson CJ and Gummow J explained at 576:
…A State law is not applied by s 79 in circumstances where it could have no direct application by reason of its invalidity for inconsistency with an existing law of the Commonwealth, within the meaning of s 109 of the Constitution (76). Likewise, a law of the Territory which is invalid or inoperative by reason of “inconsistency” with a law of the Commonwealth is not restored to life through the medium of s 79 of the Judiciary Act…
(Original emphasis)
The question which now arises is whether s 131A of the Victorian Act is rendered ineffective by reason of “inconsistency” with the provisions of s 131A of the Evidence Act.
Neither counsel for the appellant nor for the first respondent met our invitation to address us on the operative law. Some caution is therefore appropriate on this issue. However, as presently advised we are of the opinion that where, as occurred here, the Commonwealth Parliament enacts a statute as part of a uniform Commonwealth and State package of laws, to the extent there are differences in the statutes, to use the language of s 79 of the Judiciary Act, the Commonwealth laws “otherwise provide” (Northern Territory v GPAO& Ors) and the State provision is inconsistent.
We are also of the view that by its repeal of s 131A in its broader form in favour of the narrower and current form of s 131A in the Evidence Act, the Commonwealth Parliament evinced a clear intention that the Evidence Act affords an extended application of s 130 to only journalist privilege. And issues in relation to pre-trial procedures concerning the other privileges contained in Part 3.10 of the Evidence Act (including public interest immunity) are to be dealt with in accordance with the common law.
It follows that the State provision is not picked up.
It follows that the claim for public interest immunity advanced in this case must be determined in accordance with the common law.
Practice and Procedure
It is also necessary to set out the usual procedure adopted when claims of public interest immunity are made by a third party subject to a subpoena to produce documents to a court.
As with any subpoena for the production of documents, the first step which requires consideration is production of the documents to the court. This first step involves the determination of any objections to the subpoena or to the production of the documents. It is at this stage that the court will consider any claim by the person to have the subpoena set aside on the basis it is oppressive, is an abuse of process and the like and, relevantly, public interest immunity. A subpoena that does not have a legitimate forensic purpose is an abuse of process and at this stage must be set aside.
When a public interest immunity claim is made, it is expected that the person with the obligation to produce will:
·apply to have the subpoena set aside; and
·file an affidavit which addresses the scope and basis of the claim.
The affidavit claiming public interest immunity “…should state with precision the grounds on which it is contended that documents or information should not be disclosed so as to enable the court to evaluate the competing interests” (Sankeyv Whitlam per Mason J at 96) and should not contain confidential information that cannot be disclosed to the parties. In rare cases the court will receive a confidential affidavit (R v Mokbel (Ruling No. 1) [2005] VSC 410) and may take additional evidence in a closed hearing or indeed in camera. Countervailing evidence is rarely allowed (Young v Quin (1985) 59 ALR 225).
Ordinarily the court will not read the contentious documents but in an appropriate case may do so without them being formally “produced” as that term is understood in first step production (Conway v Rimmer [1968] AC 910 at 971).
The second step is the decision concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents produced to the court and under its control. In this regard, the crucial question is whether the documents have apparent relevance to the matters in issue or are themselves the subject matter of the litigation. Notwithstanding that the documents may not at that stage be admissible, if they are apparently relevant then inspection will ordinarily be ordered (National Employers Mutual General Association v Waind & Hill [1978] 1 NSWLR 372).
The third step is the admission into evidence of a document or its use in the process of taking evidence. It is at this step that questions between the parties of relevance in fact and admissibility are determined (Waind & Hill; Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038).
As will be apparent, in a case concerned with a claim of public interest immunity in response to a subpoena for the production of documents, the focus of the claim falls to be determined at the first step.
The grounds of appeal
No appeal or notice of contention was filed in relation to the primary judge’s finding that there was a legitimate forensic purpose to the production of some but not all of the documents sought by the subpoena.
The nature of the documents - Ground 1
The first ground of appeal concerns the primary judge’s finding that the documents sought to be inspected by the appellant were able to attract public interest immunity. In particular that her Honour erred in:
·Determining that the subject documents are documents which by reason of their class and/or content, are entitled to public interest immunity;
·Failing to explain why the subject documents related to “matters of state”; and
·Concluding that there was an acceptance by the parties that the subject documents were documents relating to matters of state capable of being withheld from production by reason of public interest immunity at common law.
The focus of this ground is thus on her Honour’s assessment of the character of the documents and her finding at [79] that:
There is no suggestion that the documents caught by the subpoena are not documents relating to a matter of state which are capable of being withheld by reason of public interest immunity at common law. (Footnote omitted)
It was contended that the primary judge had not considered this issue either under the common law or by reference to s 130 of the Evidence Act. It was further argued that the documents to which the subpoena was directed were neither documents of the type referred to in s 130 of the Evidence Act nor to which the common law referred.
Although the interaction of s 130 of the Evidence Act and the common law was thus raised in the grounds of appeal, no cogent argument was addressed to what, if any, differences are obtained on adopting either approach. Indeed counsel for the appellant and first respondent were at odds about whether
her Honour determined the issue by reference to the common law or s 130 of the Evidence Act, with counsel for the appellant saying that it is unclear by which measure her Honour considered the issue. We reject that submission. In a footnote to [79] the primary judge said:
Section 130 of the Evidence Act applies to documents being adduced in evidence but the documents under consideration here have not yet reached that stage.
Her Honour then referred to Alister v R, which is a seminal authority for a statement of the test to be applied at common law to determine a claim for public interest immunity. Namely, per Gibbs CJ at 412:
Sankey v. Whitlam establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against 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 this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation…
It is entirely clear that the primary judge did not consider that s 130 of the Evidence Act applied to the instant proceedings and determined the matter by reference to the common law. As we have already explained, we are satisfied that in this case it is the common law which applies. In any event, not only is there no assertion that by applying the common law rather than the Evidence Act her Honour fell into error, but we are unable to discern any relevant difference to the test to be applied to the facts of this case under the common law compared to s 130 of the Evidence Act.
Under the common law a public interest immunity claim made in relation to documents concerns what is often termed “state papers”. That term can be sourced to Gibbs CJ in Sankey v Whitlam where he discussed whether by their nature certain documents comprised a class of documents which ought not to be disclosed no matter what the documents individually contained. The discussion focused on cabinet minutes, minutes of discussions between heads of department and any document which relates to the framing of government policy at a high level. The Chief Justice accepted [at page 40] that [n]o Minister, or senior public servant, could effectively discharge the responsibilities of his office if every document prepared to enable policies to be formulated was liable to be made public” and that subsequently “…some protection…” had to be afforded. However, the argument in favour of an absolute immunity was rejected and he determined instead that documents in that class would only be withheld if it was necessary for the proper functioning of the government including the public service.
In order to better understand what is meant by the term “public interest” it is necessary to again turn to Sankey v Whitlam. Gibbs CJ explained the common law doctrine of public interest immunity at [page 38] as:
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 public interest has two aspects which may conflict. These were described by Lord Reid in Conway v. Rimmer, as follows:
“There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.”
Although in its strict use, the term “state papers” relates to cabinet documents and the like it may permissibly be used to capture the first element of a claim to public interest immunity made at common law, namely that publication of the documents would be injurious to the public interest, constituted by the government, the “…nation or public service.” (Sankey v Whitlam at [38]; Commonwealth v Northern Land Council (1993) 176 CLR 604).
However, under s 130 of the Evidence Act, public interest immunity applies to information or documents that relate to “matters of state”. Notwithstanding that the primary judge applied the common law, she used the language of the Evidence Act and characterised the documents as “matters of state.” It was submitted that because s 130 of the Evidence Act provides a restricted definition of documents that may relate to “matters of state”, in characterising the documents as “matters of state” but possibly applying the common law the primary judge gave the documents a character to which they were not entitled.
Section 130(4) constitutes list of circumstances in which information or a document is taken to relate to “matters of state”:
(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:
(a) prejudice the security, defence or international relations of Australia; or
(b) damage relations between the Commonwealth and a State or between 2 or more States; or
(c) prejudice the prevention, investigation or prosecution of an offence; or
(d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or
(e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or
(f) prejudice the proper functioning of the government of the Commonwealth or a State.
In Attorney General v Kaddour & Turkmani [2001] NSWCA 456 Sully J, with whom Spigelman CJ agreed, concluded that the definition contained in s 130(4) is non-exhaustive. Sully J said at [12]; “[t]here are no closed categories of “matters of state”…”. Clearly that must be correct.
It is well settled that the common law principles assist in informing the content and operation of s 130 of the Evidence Act: Eastman v R (1997) 76 FCR 9 at 63; Chapman v Luminis Pty Ltd (No 2) (2000) 100 FCR 229 at 246. None of the parties in the present case suggested otherwise.
Nothing to which we have been taken demonstrates that as to the availability of this privilege there is any difference between the common law and s 130 of the Evidence Act. As we explained earlier, we are satisfied that the terms “matters of state” can be used interchangeably with terms such as “state papers”, matters of government, the public service and the like. We discern no error by the use of the words “matters of state”.
We turn now to the remaining challenges made to the primary judge’s conclusion that the documents are of a type that could attract immunity.
The first matter which must be observed is that the first respondent made it plain that the claim of public interest immunity was not made on the basis of the documents forming part of a class claim but rather that the nature and content of “each document” attracted public interest immunity. The claim was made on the basis that disclosure of the documents would reveal the identity of the complainants and ultimately prejudice the proper functioning of Victoria Police. Before us counsel for the appellant appropriately conceded that in the event we are satisfied that the primary judge determined the case by reference to the contents of the documents and not on the basis that as a class of documents they are immune, her submissions addressed to the class claim must fail. As we will shortly demonstrate, the primary judge characterised the documents by reference to their content individually and not as a class.
It is also important to note that no oral argument was addressed to her Honour asserting that the documents sought to be produced were not capable of being characterised as “matters of state”, state papers or documents, the disclosure of which could be injurious to the public interest. To the extent that issue was raised by the appellant, it was to the effect that the evidence given by Superintendent C:
13. …provides little particularity as to why a Human Resources workplace investigation should be entitled to public immunity. The adducing of the evidence sought would not, on balance, prejudice the proper functioning of Victoria Police and does not outweigh the public interest asserted by the Respondent…
(Outline of submissions of the 1st Respondent (appellant), 21 August 2014)
That comment must be considered in light of counsel for the appellant’s written submission to her Honour (at [3e]):
It is not denied that confidentiality surrounding police complaints, including internal ones, can have an important public benefit; that it encourages complainants and other to speak out. It is submitted, however, in circumstances where the statements that are made are voluntary and relate to workplace bullying as opposed to possible ethical or criminal police conduct, the balance should be weighed in favour of the other public interest. The ability to conduct a trial relating to the welfare of a child with the Court having available all evidence that would be relevant to the best interests of the child should, on balance, have precedence. (Outline of submissions of the 1st Respondent (appellant), 21 August 2014)
We are persuaded that the primary judge was entitled to proceed on the basis that the challenge made by the appellant was to the balancing exercise and there was no issue as to the availability of the privilege.
However, and no doubt mindful of the fact that whether or not a claim of public interest immunity was made out is solely a matter for the court, notwithstanding the nature of the documents not being raised in argument,
her Honour went on to consider the issue. At [81-85] she analysed the evidence given by Superintendent C and whether or not it was sufficient to establish that disclosure would prejudice the public interest.
In deciding that it would, at [86], the primary judge said:
I am satisfied that if the documents described in the subpoena were to be released or used for any purpose other than the purpose for which they were created, the fact of that release would be highly prejudicial to the ability of Victoria Police to properly receive and investigate complaints against police members because:-
a)disclosure of the statements would be in breach of the promises and assurances of confidentiality under which the particular statements were given;
b)henceforth, any police member could not be confident that the internal complaints process would be confidential with the effect that police members may not be as candid as they would otherwise be if they truly believed that confidentiality of what they say could be maintained;
c)henceforth, the internal investigation procedures into police conduct could be used for the ulterior and improper purpose of generating evidence in civil proceedings such as this proceeding;
d)inspection of the documents “may prejudice the fearless and thorough investigation of police complaints. Disclosure of opinions, advice and recommendations of investigative officers to their superior officers, and vice versa, jeopardises the free and frank exchange of information”;
e)inspection of documents may jeopardise public confidence in the investigation of complaints against police members.
Although we do not fully understand what the primary judge intended to convey at [86(c)], the balance of the factors referred to in that paragraph support the reasons why she was satisfied disclosure would be highly prejudicial to Victoria Police and the public interest. Her Honour’s findings accords with both the common law and s 130(4)(f) and probably also s130(4)(e) of the Evidence Act. In our view, the primary judge was entitled to reach the conclusion that she did.
Of course, it must be remembered that the primary judge’s characterisation of the documents was informed not only by the evidence of Superintendent C, but also by her having read them. It is clear that she did not treat the documents as coming within a class but rather by their individual contents. To the extent that complaint is made that there is a failure to identify the documents with particularity, as her Honour explained at [87], her “…comments are general but are necessarily constrained by the confidentiality which, ultimately, I am satisfied must be accorded to the documents and the submissions made on behalf of the Chief Commissioner in relation thereto”.
It follows that this ground fails.
Balancing the public interests - Ground 2
By ground 2, the appellant challenges the manner in which the primary judge exercised her discretion when balancing the competing public interests, in that:
(a)At paragraph 82 relied on the case of ASIC v P Dawson Nominees (2008) 66 ASCR 704, which case related specifically to informers, in support of her finding concerning the need to protect the identity of police members who made complaints in the course of an internal dispute process;
(b)gave excessive weight to the harm which allegedly would be done to police workplace complaints procedures by production of some or all of the documents, as sought to be produced pursuant to subpoena;
(c)gave insufficient weight to the public interest which requires that a Court in performing its necessary function of adjudicating in a parenting matter pursuant to the Family Law Act 1975 should not be denied access to relevant evidence;
(d)took into account an irrelevant consideration in that in paragraph 87 of the judgment, Her Honour made an assessment and gave weight to the probative value of the subject documents in the substantive proceedings as a consideration in assessing whether the documents were entitled to public interest immunity.
(Original emphasis)
As expanded on in oral addresses, the challenge raised by ground 2(a) asserts that the primary judge wrongly treated complaints made by police officers to the Commissioner as equivalent to police informants. Having done so, she then proceeded to determine the public interest immunity claim on the basis that the police complainants in this case came within a recognised class of persons to whom public interest immunity protections can apply. In our view, ground 2(a) misstates her Honour’s process of reasoning.
It is true that the primary judge relied upon ASIC v P Dawson Nominees (2008) 169 FCR 227 and that in that case, the court discussed the public interest in protecting informers to a regulatory agency such as ASIC. However, her Honour’s reference to that case does not support the implication that she approached this case on the basis that Dawson Nominees is authority for the proposition that a claim to public interest immunity is available to “…persons making internal complaints within their work organisation…” (Appellant’s Summary of Argument, 16 February 2015 [21]). Rather, based on the discussion in Dawson Nominees, the primary judge accepted the rather unremarkable submission by the Chief Commissioner “…that seemingly innocuous information contained in complaints can, when combined with a reader’s background knowledge, lead to the ready identification of a complainant…” [83]. The point being, that as the parties in this case are themselves serving police officers familiar with the particular unit involved in the complaint meant, as her Honour explained, “…it is not feasible to edit any of the complaints or to redact parts of the complaints so as to protect adequately the identity of the police members who made complaints or gave statements” [83]. It can thus be seen that before she ruled in favour of the claim to immunity, her Honour considered whether steps could be taken which would enable the contents of at least some of the documents to be disclosed without prejudicing the public interest.
As to ground 2(b), it is noteworthy that although it is argued that the primary judge gave “excessive weight” to the harm which her Honour said would be caused if the documents were to be released, there is no challenge to
her Honour’s finding that disclosure would result in harm of that type. Self-evidently, greater weight was given to the prejudice which would be caused to Victoria Police than to the public interest in the administration of justice not being frustrated or impaired by withholding documents for which a legitimate forensic purpose was established.
It can be seen at [87-89] that the primary judge carefully weighed the competing public interests. In considering the public interest in the administration of justice, she once again considered the actual documents and their importance to the substantive proceedings. In an obvious reference to Alister v R, consideration was given to whether or not the documents were likely to produce material evidence or lead to material evidence being obtained. Her Honour was satisfied that both outcomes were unlikely. Notwithstanding the challenge raised by ground 2(d), we are not satisfied that considerations of this type were irrelevant to the balancing exercise.
Nor are we satisfied that the primary judge failed to appreciate the gravity of the public interest against which the claim by the Chief Commissioner had to be weighed. As her Honour explained at [88]:
For the avoidance of doubt, the benefit to family members and, through them, the child, of transparency of process and access to information (whether or not it is ultimately admissible) is not lost on me. I recognise that there is a benefit to parties to parenting proceedings in this court and, through them, to the child, to feel satisfied that they have been able to put all relevant evidence in support of his or her case. This benefit manifests itself in a number of ways, including, in the degree of compliance with orders, the longevity of the arrangements to which the orders relate and, probably always, to how the child(ren) is encouraged to adjust to any changes brought about by the orders. There are obvious deficits associated with not permitting a party access to documents to assist in the preparation of her case, regardless of whether the document or information can ultimately be adduced in evidence. I agree, with respect, with the comments of Gibbs J in Allister v R when his Honour referred to the circumstance of not wanting an accused person in a criminal proceeding to be left “with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done”. However, what may seem relevant and important to [the appellant], and those who advise her, may not be particularly relevant to or of importance in the court proceedings – which is my assessment in this instance.
We also fail to see how reliance on R v Polley (1997) 68 SASR 227 assists the appellant’s case. Polley is relied on in support of the proposition that documents that relate to the investigation of police misconduct or complaints against police do not, as a class, attract public interest immunity. That proposition is uncontroversial but in a case determined by reference to the contents of individual documents, irrelevant.
As to the submission:
43.In the South Australian case R v Terry Ian Polley (supra), the majority said that, providing a legitimate forensic purpose has been demonstrated, it is not for the trial judge to determine the use or importance of documents. Mullighan J at paragraph 78 quotes an observation of Hunt J in R v Saleam (1989) 16 NSWLR which was later approved by King CJ in Carter v Hayes (1994) 61 SASR 451 at p 456:
“If no public interest or immunity or other privilege is claimed (and upheld) and if a legitimate forensic purpose for their production has been demonstrated, the judge should not withhold access to the documents simply on the basis that in his view that purpose would not be satisfied in that particular case because he can see nothing in the documents which will in fact assist the accused in his defence. Provided that a legitimate forensic purpose has been demonstrated, it should be for the accused (or, in the appropriate cases, for his legal advisers only) to satisfy himself on that score after his own inspection of the documents.”
(Appellant’s Summary of Argument, 16 February 2015)
Again, the point made is irrelevant to the case at hand. In this case and contrary to the position in Polley and R v Saleam (1989) 16 NSWLR 14, the Chief Commissioner established the public interest against production. Whether or not in a case where public interest against production has not been established the judge should or should not withhold access to the documents has nothing to do with a case in which the public interest against production is established.
Ground 2 is not made out.
Errors of fact – grounds 3 and 4
Grounds 3 and 4 were argued together. We will consider them in the same manner.
By ground 3, it is asserted that her Honour erred by coming to the conclusion that:
(a)The information contained in the folders produced by Victoria Police consisted of statements or commentary on statements which were made by serving members of Victoria Police in the knowledge and expectation that what they said would be confidential and not used for any purpose other than an investigation into [the second respondent’s] conduct as a police officer; and
(b)Disclosure of the statements would be in breach of the promises and assurances of confidentiality under which the particular statements were given.
(Original emphasis)
It can be seen that the focus of ground 3 is whether or not there was a sufficient evidentiary foundation for the findings as to there being expectations of confidentiality, the use to which the documents would be put and that disclosure would be in breach of those assurances.
In our view there was ample evidence contained in the Superintendent’s affidavit to support her Honour’s conclusions. We need only refer to the following to make the point:
29.Once completed, a complaint incident form is treated as a confidential document. The information contained in it is treated in confidence by the submitting complainant/member, and the PSC, or Workplace Standards, member/s who receive it. The complainant might be asked to make a statement concerning the complaint at the time the complaint is made. If that happens, the complainant’s statements will be attached to the form.
…
31.When an investigator is instructed to investigate a complaint, he or she generally interviews the complainant where this has not already been done. The investigator may obtain additional information including statements from civilian and police witnesses. On occasions, these statements will reveal intensely private and personal information about the witness and other persons (including police colleagues). Documents and other property and information may be obtained in the course of an investigation. For example, a file may include photographs, audio or video recordings, or personal documents. This material will often be referred to in the reports written by investigators. It is regarded and respected as highly sensitive and confidential.
…
33.A statement prepared by an investigator for a complainant or witness is made in confidence and on the basis that its contents will not be disclosed without the maker’s permission save in three circumstances: the first is for the purposes of an investigation by or on behalf of the PSC: and the second and third are in relation to purposes connected with court proceedings or disciplinary proceedings arising out of the complaint.
…
35.The assurance of confidentiality to complainants and witnesses is vital in assisting with the free flow of information from complainants and witnesses in an investigation. Often police witnesses will be colleagues of the member complained about. This can and does cause considerable anxiety in the process of an internal investigation. Disclosure of statements in civil proceedings would have an effect on witness’ candour in making statements to investigators, and hinder the investigator in discharging his or her public duties.
…
37.What is difficult to gauge, however, is the degree of “voluntariness” as members are educated that they may be compelled to provide a statement or evidence pursuant to section 86Q of the [Police Regulation Act 1958 (Vic)]. Regardless, members know that their involvement in an investigation is governed by confidentiality.
(Affidavit of Superintendent C sworn 18 August 2014)
Her Honour was entitled to accept this evidence. That she did so is unremarkable and is sufficient to dispose of the complaints raised by ground 3.
However and for completeness, we also address the contention that unless the assurance of confidentiality is contained in a statute and that the assurance provides a complete restraint against disclosure, it cannot suffice. No authority in support of that proposition was provided and it is not accepted. The argument as advanced would seem to be referrable to s 130(4) of the Evidence Act, which provision, as we have already explained, does not govern the determination of these proceedings. We also observe that there is nothing said in that provision which would limit the word “confidential” to a confidence created by statute and no basis upon which that approach would be imposed on the common law.
By ground 4, it is asserted that her Honour erred:
…in finding (in paragraph 86(c) of her judgment without an evidentiary foundation, that the release of the subject documents would be highly prejudicial to the ability of Victoria Police members to properly receive and investigate complaints against police members because “henceforth, the internal investigation procedures into police conduct could be used for the ulterior and improper purpose of generating evidence in civil proceedings such as this proceeding”.
(Original emphasis)
Paragraph 86 is set out earlier in our reasons for judgment. We have already indicated that we do not understand precisely what it is that the primary judge intended by [86(c)]. We agree with the appellant that her Honour’s opinion there expressed is unsupported by evidence. However, not every error amounts to appellate error. For an error to justify appellate intervention it must be material (De Winter v De Winter (1979) FLC 90-605). In our view, the error revealed in [86(e)] is immaterial. It will be recalled that, at [86], the primary judge identified five individual factors which each support her conclusion that production of the documents would be highly prejudicial. There is nothing in her Honour’s reasons which would indicate she gave greater weight to sub-paragraph (c) than any other factor. With each of them being afforded apparently equivalent weight, sub-paragraph (c) can be ignored without her Honour’s conclusion as to prejudice being impugned.
Ground 4 must also fail.
Conclusion & Costs
The appellant has failed to establish appellate error and the appeal will be dismissed. Although an appeal in relation to production or inspection of documents would ordinarily be regarded as an interlocutory decision and thus require leave, we are inclined to the view that an appeal in relation to a subpoena for the production of documents subject to a claim of public interest immunity should be treated as a final order and not require leave. This is because an order to produce or inspect material would have a final effect on the public interest immunity claim. Although an order which upheld the claim would not, it would be perverse to require leave in one situation but not the other.
At the conclusion of the appeal, we invited submissions as to costs. In the event that the appeal was dismissed, the first respondent sought costs against the appellant. The costs were quantified at $5,500 which reflects the costs incurred by the first respondent for counsel.
The appellant conceded that the quantum of costs is appropriate but did not concede that an order for costs should be made. As we understand the submissions, they were to the effect that the appellant has modest means and an order for costs of that magnitude would occasion a degree of financial hardship.
Although we accept that the amount sought is not insignificant, we place greatest weight on the appellant’s lack of success. That the appellant has been entirely unsuccessful both justifies an order for costs and makes the order sought appropriate. The costs are to be paid within eight weeks.
Although the second respondent also sought costs against the appellant, we are not satisfied that it was necessary for the second respondent to participate in the appeal and an order for costs will not be made.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Johns JJ) delivered on 28 April 2015.
Associate:
Date: 28 April 2015
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