Grand Rozelle Pty Ltd v Transport for NSW (No 3)

Case •

[2024] NSWLEC 129

•

29 November 2024

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Grand Rozelle Pty Ltd v Transport for NSW (No 3) [2024] NSWLEC 129
Hearing dates: 8 October 2024
Date of orders: 29 November 2024
Decision date: 29 November 2024
Jurisdiction:Class 3
Before: Pritchard J
Decision:

The Court makes the following orders:

(1)   Transport for NSW’s notice of motion filed 11 September 2024 claiming public interest immunity in relation to the draft ministerial speaking notes (pp 5-9 of confidential exhibit CCD-5), Cabinet submission (pp 10-19 of confidential exhibit CCD-5), Briefing document for the Premier of New South Wales regarding key issues of the WHTBL (pp 20-37 of confidential exhibit CCD-5) and Information disclosing the content of submissions to a Cabinet Committee (information marked in green at pp 23, 35, 39, 42, 44 (at points 2, 4 and 5) and 46 of confidential exhibit CCD-5) is upheld.

(2)   The parties to seek to agree on an appropriate form of confidentiality order in relation to the document titled “CE17/1027 (Attachment B Memo)” (pp 48-52 of confidential exhibit CCD-5), and advise chambers within 7 days of these orders the form of confidentiality order they seek to have the Court make.

(3)   The confidential affidavit of Charlotte Camilla Drover dated 4 October 2024 and confidential exhibit CCD-5 be returned to the Crown Solicitor’s Office.

Catchwords:

PRACTICE AND PROCEDURE — claim of public interest immunity over Cabinet documents — ss 130 and 131 of the Evidence Act 1995 (NSW) — the Court’s inspection of the documents subject of the claim

Legislation Cited:

Evidence Act 1995 (NSW) ss 130, 131A, 133

Land Acquisition (Just Terms Compensation) Act 1991 (NSW) s 70

Cases Cited:

Attorney General v Kaddour & Turkmani [2001] NSWCCA 456

Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667; (1994) 75 A Crim R 8

Commonwealth v Northern Land Council (1993) 176 CLR 604; [1993] HCA 24

Deren v State of New South Wales (unreported, NSWSC, 28 April 1995)

Grand Rozelle Pty Ltd v Transport for NSW (No 2) [2024] NSWLEC 83

Kamasaee v Commonwealth (No 5) (2016) 52 VR 322; [2016] VSC 595

Kamasaee v Commonwealth of Australia (No 3) (2016) 52 VR 322; [2016] VSC 438

Ku-ring-gai Council v Garry West as delegate of the Acting Director-General, Office of Local Government (2017) 95 NSWLR 1; (2017) 220 LGERA 386; [2017] NSWCA 54

National Crime Authority v Gould (1989) 23 FCR 191 at 198; (1989) 46 A Crim R 1

R v Meissner (1994) 76 A Crim R 81

R vSmith (1996) 86 A Crim R 308

RMG Services Pty Ltd v South Australia [1993] SASC 4133

Rogers v Home Secretary [1973] AC 388; [1972] 2 All ER 1057; [1972] 3 WLR 279

Rowan v Cornwall and Others [1999] SASC 178

Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43

Spencer v Commonwealth (2012) 206 FCR 309; [2012] FCAFC 169

State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60

Yooyen, Tait & Poompiriyapinte v R (1991) 57 A Crim R 226

Young v Quin (1985) 4 FCR 48; [1985] FCA 18

Category:Procedural rulings
Parties: Grand Rozelle Pty Ltd (Applicant, Respondent on the motion)
Transport for NSW (Respondent, Applicant on the motion)
Representation: Counsel:
J McKelvey (Applicant, Respondent on the motion)
J Emmett SC and D Tynan (Respondent, Applicant on the motion)
Solicitors:
Addisons (Applicant)
Crown Solicitor’s Office (Respondent)
File Number(s): 2023/85834-008
Publication restriction: Nil

JUDGMENT

Introduction

  1. By notice of motion filed on 11 September 2024, Transport for NSW (TfNSW), the respondent to the proceedings and applicant on the motion, claims public interest immunity (PII) over parts of documents and their attachments sought by Grand Rozelle Pty Ltd (Grand Rozelle), the applicant in the proceedings and the respondent on the motion, pursuant to a notice to produce filed by Grand Rozelle on 6 August 2024.

  2. TfNSW seeks an order pursuant to ss 130 and 131A of the Evidence Act 1995 (NSW) (Evidence Act) that it be excused from producing, in response to the notice to produce dated 6 August 2024, information or documents that relate to matters of state, arising from the following documents:

  1. “Agenda and papers — Min Pavey meeting — 13 Feb — AW” (the Ministerial briefing papers) and the attachments to it; and

  2. “CE18/0087 Briefing for Chief Executive” (the chief executive briefing) and the attachments to it.

  1. The documents and information the subject of TfNSW’s claims for PII are Cabinet documents, or record information put before or prepared for Cabinet for deliberation.

  2. Generally, the Evidence Act does not apply in compulsory acquisition cases in Class 3 of the Court’s jurisdiction. However, Grand Rozelle accepted that the motion will be resolved by reference to the Evidence Act, rather than the common law, and that in any event the principles are generally the same. At the hearing of the motion and in their written submissions, TfNSW also referred to provisions of the Evidence Act. In light of the agreement of the parties, I will proceed on the basis that the matter should be determined by reference to the Evidence Act, relevantly ss 130 and 131A.

  3. With the agreement of the parties, I have reviewed the disputed documents in chambers in order to satisfy myself as to whether TfNSW’s claims of PII are appropriately established. By reference to TfNSW’s two categories of disputed documents, namely the Ministerial briefing papers and the chief executive briefing, I have set out the documents in relation to which I have upheld the claim of PII and those in relation to which I have declined the claim.

Procedural history

  1. On 15 March 2023, Grand Rozelle filed a Class 3 application seeking compensation under s 70 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act) following the compulsory acquisition by TfNSW for the Western Harbour Tunnel project of its leasehold interest in the former Balmain Leagues Club site at Victoria Road, Darling Street and Waterloo Street, Rozelle (the land), and the later rescission of that acquisition.

  2. On 26 April 2024, TfNSW filed a notice of motion claiming PII in relation to various documents covered in the notice to produce filed by Grand Rozelle on 10 October 2023 and amended on 15 February 2024. On 9 August 2024, in Grand Rozelle Pty Ltd v Transport for NSW (No 2) [1] (Grand Rozelle v TfNSW (No 2)), Justice Pain delivered a judgment concerning those PII claims.

    1. [2024] NSWLEC 83 at [19] (Pain J).

  3. On 6 August 2024, Grand Rozelle filed a further notice to produce seeking production of documents by 20 August 2024. That notice to produce is the subject of the motion now before me.

  4. The Class 3 proceedings have not been set down for hearing. On 18 September 2024, Froh R made orders and directions in relation to the preparation and filing of expert evidence in the substantive proceedings. The matter is listed for directions on 7 February 2025.

Evidence

  1. TfNSW read the affidavit of Ms Charlotte Camilla Drover, deputy secretary of TfNSW, dated 28 March 2024 (the first Drover affidavit), and the affidavit of Ms Drover dated 23 September 2024 (the second Drover affidavit).

  2. TfNSW also provided to the Court the confidential affidavit of Ms Drover dated 4 October 2024 (the confidential Drover affidavit) and confidential exhibit CCD-5 thereto (confidential exhibit CCD-5). Both were marked for identification.

Further amended points of claim

  1. At the hearing of the motion, Grand Rozelle relied on its further amended points of claim filed on 18 June 2024 in relation to the interpretation of s 70 of the Just Terms Act (discussed further below at [39]). The further amended points of claim provide relevantly at [18A] as follows:

18A Compensation is payable to the Applicant under s. 70 of the Just Terms Act for the financial costs incurred or damage suffered as a direct consequence of the Acquisition, which includes those costs incurred and that damage suffered by the Applicant arising from:

(a) the taking of the interest in the Land by the Respondent;

(b) the exclusive possession of the Land by the Respondent;

(c) the proposal to acquire the Land, including any precedent steps taken by the Respondent between 16 March 2017, being the date the preferred route for the WHT was publicly announced, and the Acquisition Date; and

(d) any decisions taken by the Respondent in relation to the proposal to carry out the public purpose on the Land between 16 March 2017 until 26 May 2022;

including:

(e) the delayed development of the Land while:

(i) the Applicant was unable to progress the development given the uncertainty as to whether it would be able to complete the development of the Land if it commenced it because of the pending the Acquisition; and

(ii) the Respondent had exclusive possession of the Land;

(f) the costs associated with the fire on the Land on 7 May 2022 (see [27]-[29D] below).

Relevant statutory provisions and principles

  1. Section 70 of the Just Terms Act provides as follows in relation to compensation for the rescission of an acquisition notice:

70 Compensation for rescission of acquisition notice

(1) If an acquisition notice is rescinded (in whole or in part) under this Act, a person in whom the land is revested on that rescission is entitled to be compensated by the authority of the State for any financial costs or any damage actually incurred or suffered by that person as a direct consequence of the compulsory acquisition and its rescission.

(2) Compensation is not payable under this section in respect of any change in the value of the land.

(3) The compensation payable under this section includes compensation for any easement or other interest which was created after the acquisition of the land and which subsists after the rescission of the acquisition notice. Section 62 and any other relevant provision of Part 3 apply to the determination of the amount of any such compensation.

(4) Compensation is not payable under this section unless a claim for compensation is made within 3 years after the rescission of the acquisition notice.

  1. Part 3.10 of the Evidence Act provides for a number of privileges which allow a party to proceedings or a witness to refuse to disclose certain communications and documents. In Part 3.10, Division 3 is concerned with evidence excluded in the public interest. In Division 3 of Part 3.10, s 130 provides as follows in relation to the exclusion of evidence of matters of state:

130   Exclusion of evidence of matters of state

(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.

(2)  The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).

(3)  In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.

(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.

(5)  Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters—

(a)  the importance of the information or the document in the proceeding,

(b)  if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor,

(c)  the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding,

(d)  the likely effect of adducing evidence of the information or document, and the means available to limit its publication,

(e)  whether the substance of the information or document has already been published,

(f)  if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant—whether the direction is to be made subject to the condition that the prosecution be stayed.

…

  1. Section 131A provides as follows in relation to the application of Part 3.10 to preliminary proceedings of courts:

131A Application of Part to preliminary proceedings of courts

(1) If—

(a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and

(b) the person objects to giving that information or providing that document,

the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.

(2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following—

…

(e) a notice to produce,

…

  1. Section 133 of the Evidence Act provides as follows in relation to the inspection of documents by the court:

133 Court may inspect etc documents

If a question arises under this Part relating to a document, the court may order that the document be produced to it and may inspect the document for the purpose of determining the question.

  1. Grand Rozelle generally agreed with the outline of legal principles set out in TfNSW’s submissions. In summary, those principles are as follows.

  2. PII is an immunity from the production of documents or disclosure of information where disclosure of the contents of a particular document would be contrary to the public interest. PII cannot be waived by the Crown or anyone else. [2]

    2. Young v Quin (1985) 4 FCR 483; [1985] FCA 18 (Young v Quin) at 486 (Bowen CJ) citing Rogers v Home Secretary [1973] AC 388 at 407; [1972] 2 All ER 1057; [1972] 3 WLR 279 (Lord Simon of Glaisdale).

  3. In Young v Quin, Bowen CJ at 485-486 referred to the rule that a claim of PII may be made by any person, including one not a party to the proceedings, and continued:

… the rule that the claim may be made by any person, including one not a party to the proceedings. Indeed, the Court itself may be obliged to prevent the disclosure of a document even though no claim for public interest immunity has been made, if it is clear to the Court that there may be serious injury to the national interest. There is no suggestion in such a case that the Court should in some way submit itself to interrogation by the parties or should ask for their assistance, though no doubt it would be within the power of the Court to seek such assistance. It has, moreover, been said that once the objection of public interest immunity appears, it cannot be waived by the Crown or anyone else …

  1. In Sankey v Whitlam,[3] Gibbs ACJ said as follows at 44:

It is however clear that the court should prevent the disclosure of a document whose production would be contrary to the public interest even if no claim is made … that its production should be withheld … [and] even if the proper procedure for objection … has not been followed.

3. Sankey v Whitlam (1978) 142 CLR 1 (Sankey v Whitlam) at 44; [1978] HCA 43 (Gibbs ACJ).

  1. In Attorney-General (NSW) v Stuart [4] (Stuart), Smart J provided a non-exhaustive list of those who can raise questions of PII: “[t]he court, the parties to proceedings, recipients of subpoenas or witness summonses, the Crown and those having a particular interest, such as the Gaming Board”. So much is confirmed by s 130(2) of the Evidence Act which provides that the court may give a direction pursuant to s 130(1) either on its own initiative or on the application of any person (whether or not the person is a party). Here, TfNSW is a party to the Class 3 proceedings.

    4. (1994) 34 NSWLR 667 at 690C; (1994) 75 A Crim R 8 at 30 (Smart J).

  2. Section 130(1) of the Evidence Act provides that the court may direct that information or a document not be adduced as evidence 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. Section 130(5) provides a non-exhaustive list of the matters that the court may take into account for the purposes of s 130(1).

  3. The documents over which TfNSW claims PII are documents which TfNSW submits are documents or record information put before or prepared for Cabinet deliberation. TfNSW submitted that they concern matters of state within the meaning of s 130 of the Evidence Act as their disclosure would “prejudice the proper functioning of the government of … a State”, within the meaning of s 130(4)(f). Further, TfNSW submitted that it makes a “class” claim based on the nature of the documents and not their contents.

  4. In Ku-ring-gai Council v Garry West as delegate of the Acting Director-General, Office of Local Government,[5] Basten JA said at [79] as follows (footnote omitted):

As may be seen from the form of the affidavit, and as was affirmed by senior counsel for the Minister, the claim for public interest immunity was a “class” claim, based on the nature of the document and not upon its contents. The distinction is by no means watertight, but one significance of the distinction is that, whereas it may be appropriate for the court to inspect documents where the claim for immunity is based on their contents, there will usually be no cause for inspection where the claim does not rely upon the contents.

5. (2017) 95 NSWLR 1; (2017) 220 LGERA 386; [2017] NSWCA 54 at [79] (Basten JA).

  1. However, s 133 of the Evidence Act provides that under Part 3.10 “the court may inspect the document for the purpose of determining the question”.

  2. In Sankey v Whitlam, Gibbs ACJ observed at 39 in relation to certain documents which by their nature fall into a class which ought not be disclosed no matter what the documents individually contain (citations removed):

The law recognises that there is a class of documents which in the public interest should be immune from disclosure. The class includes cabinet minutes and minutes of discussions between heads of departments, papers brought into existence for the purpose of preparing a submission to cabinet, and indeed any documents which relate to the framing of government policy at a high level.

  1. In Commonwealth v Northern Land Council [6] (NLC), Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ said at 618:

Whether the circumstances of a particular case will be sufficient to displace the considerations which favour immunity depends to a large extent upon the nature of the class. In the case of documents recording the actual deliberations of Cabinet, only considerations which are indeed exceptional would be sufficient to overcome the public interest in their immunity from disclosure, they being documents with a pre-eminent claim to confidentiality. Indeed, for our part we doubt whether the disclosure of the records of Cabinet deliberations upon matters which remain current or controversial would ever be warranted in civil proceedings. The public interest in avoiding serious damage to the proper working of government at the highest level must prevail over the interests of a litigant seeking to vindicate private rights.

6. (1993) 176 CLR 604 at 618; [1993] HCA 24 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ).

  1. Subsequently, in State of New South Wales v Public Transport Ticketing Corporation [7] (PTTC) at [50], Allsop P observed as follows (citations omitted):

50. Cabinet documents in the form of documents recording the matters put to Cabinet for discussion (such as minutes for the consideration of Cabinet) have been held to be in the same position as records of the deliberations or decisions of Cabinet. Thus, broadly, records of Cabinet deliberations and decisions and documents revealing the deliberations of Cabinet will be regarded as attracting the protection conferred by public interest immunity or by that afforded to matters of state, subject to the balancing of the competing interests. The public interest in preserving the secrecy of such documents will ordinarily be given considerable weight in the balancing process.

7. [2011] NSWCA 60 at [50] (Allsop P) (Hodgson JA and Sackville AJA agreeing).

  1. TfNSW submitted that the rationale for the approach set out by Allsop P in PTTC at [50] is that disclosure of submissions to Cabinet can indirectly lead to the disclosure of deliberations of Cabinet; it being a fair inference that, where a document is submitted to Cabinet for its consideration, the content of the document was the subject of Cabinet’s consideration.

  2. In New South Wales v Ryan, [8] the Full Federal Court said at 252 that: “recommendations of any kind contained in a document submitted to Cabinet are quite likely to have been involved in the deliberations of Cabinet.” TfNSW submitted that the same principle applies to drafts of documents ultimately submitted to Cabinet. [9] Referring again to Sankey v Whitlam at 38-39, TfNSW submitted that in determining whether or not to allow a claim of PII, the Court must balance the public interest in withholding the disclosure of information or the production of a document, against the public interest in ensuring that courts performing the functions of justice should have access to relevant evidence. [10]

    8. (1998) 101 LGERA 246 at 252 (Burchett, Hill and Madgwick JJ).

    9. Deren v State of New South Wales (unreported, NSWSC, 28 April 1995, Levine J); RMG Services Pty Ltd v South Australia [1993] SASC 4133 at [27] (Anderson J); Rowan v Cornwall and Others [1999] SASC 178 at [11] (Duggan J).

    10. Sankey v Whitlam at 38-39 (Gibbs ACJ); Evidence Act s 130(1).

  3. In PTTC at [52]-[55], Allsop P (Hodgson JA and Sackville AJA agreeing) made the following observations in relation to the weighing or balancing process and whether the commercial or contractual responsibility of government, once entered, might be treated differently to questions of policy:

52. Conformably with the weighing or balancing process discussed in NLC and inhering within s 130, relevant considerations to take into account are whether the documents concern policy, the currency and contemporaneous controversiality of the subject matter, the character of the subject matter otherwise, for instance whether national security or high policy and the forensic relevance of the documents: see the Full Court in Commonwealth v Northern Land Council (1991) 30 FCR 1 at 38; North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1080 at [16] (Wilcox J); Betfair Pty Ltd v Racing New South Wales (No 7) [2009] FCA 1140; 181 FCR 66 at [34] (Jagot J); and RP Data v Western Australian Land Information Authority [2010] FCA 922; 188 FCR 378 at [23] (Barker J).

53. The word "policy" should be recognised as a broad concept. It is notoriously difficult to differentiate between "policy" and "operation" in some contexts. I would understand the word to be used (and I use it below) in the sense of the consideration of approaches and conduct for the present and the future assessed by reference to the general interests of society. What I exclude from policy is the consideration, here, of a particular body of facts in a particular legal and contractual context and any discussion about that specific contractual matter.

54. This concept does not necessarily exclude consideration of what might be described as commercial ventures undertaken by governments or in which governments participate one way or another. The history of Australia reveals that governments have often participated in undertakings of a kind that involve large expenditure of money and large social and economic investments. To say this is to recognise that policy, economic and commercial considerations play a part in such undertakings.

55. However, the cases have recognised that the commercial or contractual responsibilities of government, once entered, may well be able to be treated differently to questions of policy. To the extent that the executive branch of government participates in contractual arrangements and commercial undertakings (in the advancement of the public interest), there is much to be said for the proposition (present elsewhere in the legal system eg the Judiciary Act 1903 (Cth), s 64) that it should be treated like any other litigant in a commercial dispute in which it finds itself: cf Robinson v South Australia (No 2) [1931] AC 704 at 715; Harbours Corporation of Queensland v Vessey Chemicals Pty Ltd (1986) 12 FCR 60 at 63-64; Hooker Corporation Ltd v Darling Harbour Authority (1987) 14 ALD 110; Carey v Ontario [1986] 2 SCR 637 at [82]-[84]; Adelaide Brighton Cement Ltd v South Australia [1999] SASC 379; 75 SASR 209; Sportsbet Pty Ltd v New South Wales (No 3) [2009] FCA 1283; 262 ALR 27 at 38 [39]. These cases reveal that whilst not a hard and fast consideration, the commercial character of a contract as the subject matter of a document is an important consideration in the balancing exercise. In particular, consideration of a specific contractual dispute or of particular facts relevant to that dispute may require a different approach than consideration of whether a government should become involved in a proposed project. In this respect, an important consideration in the due administration of justice is the denial of any possible perception that the government is in a privileged position in how it litigates its commercial rights and entitlements against citizens, in the absence of demonstration of a proper basis of interest of a character that attracts the immunity. There are many circumstances where policy has got nothing to do with a decision by government as to a step in a commercial arrangement or dispute. There are other circumstances where commercial decision-making and policy can intersect.

  1. Likewise, Pain J in Grand Rozelle v TfNSW (No 2) said as follows at [27]-[28] in relation to the weighing process and commercial disputes:

27. The PII claim should be considered in light of the nature of the documents sought. As identified in Uniform Evidence Law at 1276 in weighing up a PII claim the subject of the information or document is material, there distinguishing between national security concerns (a number of cases concerning national security matters are identified in footnote 844) and commercial matters, citing PTTC at [55] (which the Applicant also relied on). PTTC at [55] states:

…

28. PTTC concerned a commercial dispute between a contractor and a statutory entity carrying out a project on behalf of the NSW government. While the circumstances arising in the Applicant’s claim for compensation do not arise from a contractual dispute, the nature of the project giving rise to a commercial contract or agreement is relevant. The documents sought in category 3 concern a decision about how the NSW government should undertake a large public infrastructure project in 2017/2018, which project has been subsequently progressed presumably through entry into the necessary contract with the preferred builder. Construction is presently well advanced. Category 6 seeks more recent documents from October 2020 to January 2022 which may give rise to greater sensitivity in that events are recent.

  1. In relation to whether PII attaches to speaking notes, in PTTC at [82]-[83], Allsop P (Hodgson JA and Sackville AJA agreeing) said as follows:

82. … It is not the law that public interest immunity will protect all Cabinet discussions, about all topics, forever. However, I accept that even if drafts, these speaking notes would tend to disclose what the Minister told the Budget Cabinet Committee. Critical questions are whether they have current and contemporary relevance, especially to policy and whether they deal with the particular dispute …

83. Though speaking notes are not records of deliberations or decisions of Cabinet they are, like minutes for submission to Cabinet, documents which tend to disclose what was put to Cabinet. As such, for their disclosure, the balancing exercise should reveal at least that their disclosure is of substantial significance for the proper determination of the proceedings.

  1. In PTTC, the Allsop P considered the majority’s reasoning in NLC. At [46]-[47], Allsop P (Hodgson JA and Sackville AJA agreeing) said as follows:

46. The majority in NLC at 616-617 approved a passage from the judgment of Gibbs ACJ in Sankey v Whitlam [1978] HCA 43; 142 CLR 1 at 43 which is worthy of repetition here:

The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection - the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned. If a strong case has been made out for the production of the documents, and the court concludes that their disclosure would not really be detrimental to the public interest, an order for production will be made.

47. The majority in NLC at 617 elaborated upon the last sentence in this passage from Gibbs ACJ's reasons in Sankey v Whitlam saying:

In a case where a document fell into a class of document the disclosure of which would be injurious to the public interest regardless of the contents, a court could conclude that 'disclosure would not really be detrimental to the public interest' only in circumstances where there was a competing public interest, such as the public interest in the advancement of justice, which outweighed the public interest in the preservation of confidentiality.

  1. In the motion before me, there arose a minor, I consider immaterial, dispute between the parties about whether the test in determining whether a claim for PII consists of two or three steps. TfNSW submitted that consideration of a PII claim involves first, determining whether the evidence sought to be obtained is material in the sense of there being a legitimate forensic purpose (citing Stuart at 681); second, establishing that there is a sound basis for the claim of immunity; and third, undertaking the balancing exercise.

  2. Grand Rozelle submitted that the two stages of analysis required to be undertaken to determine a claim for PII were set out in PTTC at [42] by Allsop P (affirmed in Grand Rozelle TfNSW (No 2) by Pain J at [19]) as follows:

42. 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.

  1. To the extent it be necessary to resolve what I have referred to as a minor and immaterial dispute between the parties, I will proceed in accordance with the two broad stages of analysis set out by Allsop P in PTTC at [42].

  2. Further, the authorities recognise that where Cabinet documents are concerned, different kinds of documents might attract a greater or lesser degree of protection; that is, the public interest in disclosure might more readily or less readily outweigh public interest in non-disclosure. In this regard, there is a spectrum or continuum of the “Cabinet document” class, and it is only in an exceptional case where the material in the document is crucial to the proper determination of the proceedings that the public interest in the administration of justice will outweigh the public interest in preserving its confidentiality: NLC at 619 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). In particular, it has been recognised that:

  1. Cabinet documents as a class includes documents submitted to and considered by Cabinet and precursor documents, including documents that were not considered by Cabinet or even submitted to Cabinet, but were prepared for that purpose. [11]

  2. Documents recording decisions or deliberations of Cabinet have a “pre-eminent claim to confidentiality”[12] – the claim for immunity will be paramount “in all but quite exceptional situations.” [13] Cabinet documents in the form of documents recording the matters put to Cabinet for discussion (such as minutes) have been held to be in the same position as records of the deliberations or decisions of Cabinet.

  3. There is a broad equivalence between documents recording deliberations and decisions and documents which reveal those deliberations. The public interest in preserving secrecy will ordinarily be given considerable weight, and disclosure ought not be ordered unless they are crucial for the proper determination of the proceedings. [14]

  4. Other documents including “documents brought into existence within governmental departments and instrumentalities for the purpose of preparing a submission to Cabinet”[15] and “documents and communications passing between a Minister and the head of his department, or between heads of departments, relating to Cabinet proceedings and material prepared for Cabinet” [16] are recognised classes prima facie entitled to protection on the grounds of PII. [17]

  5. The extent to which the documents disclose or enable reliable inferences to be drawn about the content of Cabinet deliberations will ordinarily be given considerable weight in the balancing exercise. [18]

    11. Kamasaee v Commonwealth (No 5) (2016) 52 VR 322 at 352; [2016] VSC 595 (Kamasaee (No 5)) at [35], [61] (Macaulay J).

    12. Spencer v Commonwealth (2012) 206 FCR 309; [2012] FCAFC 169 (Spencer) at [32] (Keane CJ, Dowsett and Jagot JJ).

    13. NLC at 618 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ).

    14. Kamasaee (No 5) at [61] (Macaulay J).

    15. Kamasaee v Commonwealth of Australia (No 3) (2016) 52 VR 322; [2016] VSC 438 (Kamasaee (No 3)) at [9] (Macaulay J).

    16. Kamasaee (No 3) at [9] (Macaulay J).

    17. Spencer at [33] (Keane CJ, Dowsett and Jagot JJ).

    18. Kamasaee (No 5) at [83] (Macaulay J).

Consideration

  1. At the hearing of the motion, both parties raised a question in relation to the interpretation of s 70 of the Just Terms Act, and specifically in relation to the “temporal element”, namely whether s 70 permits an enquiry into the “financial costs or any damage actually incurred or suffered” as a consequence of precedent steps to the acquisition. In Grand Rozelle’s further amended points of claim, Grand Rozelle contended that any precedent steps or decisions made during the anterior period to the acquisition date of 1 October 2021 are relevant. This was submitted to be reflected in [18A(c)] and [18A(d)] of the further amended points of claim, reproduced above at [12] which provide as follows:

(c) the proposal to acquire the Land, including any precedent steps taken by the Respondent between 16 March 2017, being the date the preferred route for the WHT was publicly announced, and the Acquisition Date; and

(d) any decisions taken by the Respondent in relation to the proposal to carry out the public purpose on the Land between 16 March 2017 until 26 May 2022;

  1. In Grand Rozelle v TfNSW (No 2), Pain J at [20] said as follows in relation to the construction of s 70 of the Just Terms Act at an early stage of the proceedings:

As I indicated during the hearing, I will not adopt for current purposes the narrow construction of s 70 of the Just Terms Act which the Respondent sought to argue, namely that acquisition for the purpose of that section should be taken to be the DOA of 1 October 2021, so that no events earlier than that date can be relevant. Further, the Respondent’s submission that only material relevant to establishing the incurring of costs and damages can be relevant to a claim under s 70 is also too narrow an approach to statutory construction at this early stage of the proceeding and is an issue that requires substantive determination at the final hearing by the trial judge. I will be considering the case as articulated by the FAPOC which assumes a wider construction of s 70 and which renders events before the DOA potentially relevant as articulated in pars 18A and 35A of the FAPOC. I observe that compulsory acquisition by an acquiring authority is often a lengthy process as the Just Terms Act requires an acquiring authority to negotiate with a holder of an interest in land before proceeding to acquisition (s 10A), and the issuing of a PAN (s 12) as steps necessary to be undertaken before a formal notice of acquisition is issued under s 19.

  1. At the hearing of the motion before me, both parties accepted that it is open to the Court to follow the approach of Pain J in Grand Rozelle v TfNSW (No 2) at [20], and “not decide [the] question of law … as to the temporal element of s 70 [of the Just Terms Act]” and proceed on the basis that “s 70 may permit an enquiry into the financial costs incurred or damage suffered as a consequence of precedent steps to the acquisition, or decisions taken by the respondent in relation to the proposal to acquire”. In other words, the dispute is “a matter for the trial judge”. I will so proceed.

  2. In relation to both the Ministerial briefing papers and the chief executive briefing, TfNSW submitted that the documents and information the subject of TfNSW’s claims for PII are Cabinet documents, or record information put before or prepared for Cabinet for deliberation. As such, the documents have a pre-eminent claim to confidentiality and are documents that would ordinarily only be made available to parties seeking production if they were crucial to the proper determination of the proceedings. [19] The documents the subject of the claims were brought into existence for the primary purpose of obtaining a Cabinet decision upon a matter. Other information contained within the documents is information that on its face clearly reveals information that was put to Cabinet for the purpose of obtaining a Cabinet decision upon a matter. Accordingly, production of any information which could reveal Cabinet’s decision on such a matter is not to be disclosed. Exceptional circumstances, TfNSW submitted, do not exist outweighing the public interest in non-disclosure. [20]

    19. PTTC at [51] (Allsop P) (Hodgson JA and Sackville AJA agreeing).

    20. NLC at 618 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ).

  3. In relation to the balancing exercise, TfNSW submitted that the documents concern a decision made by the NSW Government to enter into significant building projects. Consistently with the observations of Allsop P in PTTC at [52]-[55], a decision by government to enter into a commercial transaction is a matter of policy which PII ordinarily protects. Exceptional circumstances — which the High Court in NLC at 618 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ) doubted could ever be present in civil proceedings — would be required before these documents are disclosed. TfNSW submitted that the documents over which PII is claimed are not “crucial” to the proper determination of Grand Rozelle’s civil claim so as to establish the extraordinary circumstances necessary to warrant disclosure: s 130(5)(a) and (c) of the Evidence Act.

  1. Grand Rozelle submitted that, as is to be expected, it did not have the benefit of the confidential Drover affidavit or confidential exhibit CCD-5, and was accordingly very limited in the submissions it could make in relation to their content. Therefore, its submissions could only be based on the description of the documents provided by TfNSW.

  2. Pursuant to s 130(3) of the Evidence Act, a court “may inform itself in any way it thinks fit” in deciding whether to give a direction that the information or document not be adduced as evidence. In Attorney General v Kaddour & Turkmani,[21] Sully J, with whom Spigelman CJ and Adams J agreed, said at [20] that the terms of s 130(3) mean that the trial judge:

… was entitled to have full regard to what was said in the various Confidential Statements; and to take the contents of those Statements fully into account without disclosing in any way or to anybody the contents of the Confidential Statements.

21. [2001] NSWCCA 456 at [20] (Sully J) (Spigelman CJ and Adams J agreeing).

  1. In order to support a claim of PII, a court may be asked to consider confidential evidence in the form of a confidential affidavit or exhibit which is provided for the perusal of only the court. [22] In National Crime Authority v Gould [23] , Foster J at 198 explained the reasoning behind this approach:

[That the affidavit supporting the immunity claim had] not been made available to the defence … would not be an available reason for refusing to consider the affidavit. The affidavit may, itself, contain material, which if disclosed could adversely affect public interest. The very reasons advanced in the affidavit for the non-disclosure of the materials sought in the subpoena may themselves indicate facts the disclosure of which in a public forum might well be inimical to the proper and efficient conduct of the operations of the NCA. Of course they may not; in which case, the court may well think it appropriate to make the contents available to the defence for the argument of the question of immunity. Such considerations cannot, of course, arise unless the court has regard to the contents of the affidavit in the first place.

22. R v Meissner (1994) 76 A Crim R 81 at 84-85 (Carruthers J) (Smart and Grove JJ agreeing); R v Smith (1996) 86 A Crim R 308 at 310 (Gleeson CJ, Clarke and Sheller JJA); Yooyen, Tait & Poompiriyapinte v R (1991) 57 A Crim R 226 at 233 (Gleeson CJ) (Meagher JA and Findlay AJA agreeing).

23. (1989) 23 FCR 191 at 198; (1989) 46 A Crim R 1 at 9 (Foster J).

Rulings

  1. I now proceed to apply the two broad stages of analysis set out in PTTC at [42] (Allsop P) and affirmed in Grand Rozelle v TfNSW (No 2) at [19] (Pain J): first, an assessment of the character of the information or document; and secondly, a weighing or balancing exercise to assess the public interest on whether disclosure would prejudice the proper functioning of the government.

  2. In so proceeding, I have given consideration to the first and second Drover affidavits, the confidential Drover affidavit and confidential exhibit CCD-5. In her second affidavit, Ms Drover gave evidence that each document (or the information contained in a document) over which a claim of PII is made was provided to Cabinet, or is an antecedent version of a document that was provided to Cabinet. These documents were prepared for the purposes of the Cabinet deliberation or record information intended for Cabinet, or information about the contents of Cabinet submissions or decisions.

  3. In relation to the Ministerial briefing papers, which I have reviewed, I am satisfied on the balance of probabilities that each document over which PII is claimed relates to a matter of state. I am satisfied that each document was prepared for the purpose of Cabinet submissions or deliberations.

  4. I am also satisfied, in undertaking the weighing or balancing exercise, that disclosure of the Ministerial briefing papers and attachments would prejudice the proper functioning of the government. In so finding, I have considered what was said by Allsop P in PTTC at [53]-[55] in relation to the participation by the executive branch of government in contractual arrangements and contractual undertakings. [24] I have also considered in relation to whether PII attaches to speaking notes, as said by Allsop P, Hodgson and Sackville JJA agreeing, in PTTC at [82] that the “[c]ritical questions are whether they have current and contemporary relevance, especially to policy and whether they deal with the particular dispute.”

    24. And also what was said by Pain J in Grand Rozelle v TfNSW (No 2) at [27]-[28].

  5. In the balancing exercise, I have also considered Grand Rozelle’s claim in the proceedings and whether the documents are important to that claim.

  6. I am satisfied, on the balance of probabilities, that TfNSW has established PII in relation to the Ministerial briefing papers.

The Ministerial briefing papers

  1. My rulings in relation to the Ministerial briefing papers and the attachments to it are as follows:

Name of document or attachment

Ruling

Draft ministerial speaking notes (pp 5-9 of confidential exhibit CCD-5)

PII claim upheld.

Cabinet submission (pp 10-19 of confidential exhibit CCD-5)

PII claim upheld.

Briefing document for the Premier of New South Wales regarding key issues of the WHTBL (pp 20-37 of confidential exhibit CCD-5)

PII claim upheld.

Information disclosing the content of submissions to a Cabinet Committee (information marked in green at pp 23, 35, 39, 42, 44 (at points 2, 4 and 5) and 46 of confidential exhibit CCD-5)

PII claim upheld.

The chief executive briefing

  1. In relation to the document titled “CE17/1027 (Attachment B Memo)” (pp 48-52 of confidential exhibit CCD-5), TfNSW did not oppose the production of this document if there are confidentiality orders similar to those made by Pain J on 23 August 2024 in the same proceedings. The form of order made by Pain J is extracted below:

1. The public interest immunity claims made by the Respondent over documents referred to in Schedule A-01 to these orders be upheld, with the exception of the parts of the documents noted in Schedule A-02 to these orders.

2. The Respondent is to produce the parts of the documents noted in Schedule A-02 ("the confidential documents") to these orders by producing a watermarked copy to the Court by 6 September 2024.

3. From 9 September 2024 uplift access to the confidential documents is granted to the legal representatives for the Applicant, and a maximum of five (5) copies may be made. If the Respondent files and serves an application seeking leave to appeal from any of these orders by 5pm on 6 September 2024, the uplift orders under this order will be postponed to 20 September 2024, subject to further order of this Court or the Court of Appeal.

4. Pursuant to s. 7 of the Court Suppression and Non-publication Orders Act 2010 ("the CSNPO Act'), upon the grounds set out at ss. 8(1)(a) and (e) of the CSNPO Act, there be no disclosure of the confidential documents or the information in them beyond:

a.   the Court;

b.   the Respondent and its legal representatives;

c.   experts engaged by the Respondent in these proceedings;

d.   the Applicant;

e.   the legal representatives for the Applicant; and

f.   experts engaged by the Applicant in these proceedings.

4A. Harshane Kahagalle, Natalie Rodwell, Lee Cone, Annice Savill and Janet McKelvey, being the legal representatives of the Applicant undertake to the Court that any documents produced under these orders will only be provided to the Applicant or the Applicant's experts if they form the view that the documents become necessary for the preparation of the evidence to be prepared in these proceedings.

5. Order 4 does not apply to restrict disclosure of the confidential documents or the information in them by the Respondent or the State of New South Wales.

6. Pursuant to ss 11 and 12 of the CSNPO Act, Order 4 is to apply throughout the Commonwealth of Australia and until 23 August 2034.

7. The proceedings are listed for directions on 12 September 2024.

  1. Grand Rozelle accepted TfNSW’s proposal in relation to the production of the chief executive briefing in accordance with confidentiality orders.

  2. I will hear from the parties in relation to the appropriate form of a confidentiality order in relation to the document titled “CE17/1027 (Attachment B Memo)” (pp 48-52 of confidential exhibit CCD-5), and whether they seek to have such order made in chambers.

Costs

  1. Neither party made any submission in relation to the costs of the motion, other than Grand Rozelle submitted at the hearing of the motion that it expected TfNSW to make a costs application.

Orders

  1. The Court makes the following orders:

  1. Transport for NSW’s notice of motion filed 11 September 2024 claiming public interest immunity in relation to the draft ministerial speaking notes (pp 5-9 of confidential exhibit CCD-5), Cabinet submission (pp 10-19 of confidential exhibit CCD-5), Briefing document for the Premier of New South Wales regarding key issues of the WHTBL (pp 20-37 of confidential exhibit CCD-5) and Information disclosing the content of submissions to a Cabinet Committee (information marked in green at pp 23, 35, 39, 42, 44 (at points 2, 4 and 5) and 46 of confidential exhibit CCD-5) is upheld.

  2. The parties to seek to agree on an appropriate form of confidentiality order in relation to the document titled “CE17/1027 (Attachment B Memo)” (pp 48-52 of confidential exhibit CCD-5), and advise chambers within 7 days of these orders the form of confidentiality order they seek to have the Court make.

  3. The confidential affidavit of Charlotte Camilla Drover dated 4 October 2024 and confidential exhibit CCD-5 be returned to the Crown Solicitor’s Office.

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Endnotes

Decision last updated: 29 November 2024

Cases Citing This Decision

0

Cases Cited

27

Statutory Material Cited

2

Attorney General v Kaddour & Turkmani [2001] NSWCCA 456
Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 97
Commonwealth v Northern Land Council [1993] HCA 24