I Cook Foods Pty Ltd v State of Victoria (Department of Health and Human Services)
[2020] VSC 39
•17 February 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2019 5475
| I COOK FOODS PTY LTD (ACN 094 392 060) | Plaintiff |
| v | |
| STATE OF VICTORIA (DEPARTMENT OF HEALTH AND HUMAN SERVICES) | Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 February 2020 |
DATE OF JUDGMENT: | 17 February 2020 |
CASE MAY BE CITED AS: | I Cook Foods Pty Ltd v State of Victoria (Department of Health and Human Services) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 39 |
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PRACTICE AND PROCEDURE – Discovery – Application for preliminary discovery under rule 32.05 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) following a closure order made by the Chief Health Officer pursuant to s 19 of the Food Act 1984 (Vic) – Potential action for tort of misfeasance – Where charges were made against the plaintiff and its director for alleged breaches of the Food Act 1984 (Vic) in the aftermath of the death of an elderly woman in hospital – Principles in relation to each of the prerequisites under rule 32.05 of the Rules – Victorian Tax Families Inc & Anor v Taxi Services Commission [2018] VSC 594, referred to – Low threshold for determining whether the plaintiff has reasonable cause to believe it might have a right to relief against the defendant – Alex Fraser Pty Ltd v Minister for Planning [2018] VSC 391, referred to – Discovery of documents relevant to public official’s state of mind necessary in order to assist the plaintiff to determine whether to bring a proceeding – Confidentiality - Public interest in public officials being able to respond quickly and appropriately in a crisis – Stage of proceeding relevant to the question of whether a confidentiality regime should be imposed – Public interest in open administration of justice not relevant prior to the issue of a proceeding – Hogan v Australian Crime Commission (2010) 240 CLR 651 and Oswal (Ruling No 5) [2017] VSC 19, referred to – Order for production of documents under a confidentiality regime.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Star QC with Dr M Sharpe | McKean Park |
| For the Defendant | Mr M McLay | Minter Ellison |
HER HONOUR:
Background
The plaintiff company, I Cook Foods Pty Ltd, is a family business which provides, among other things, pre‑prepared packaged meals for the hospital and aged care sectors, and for ‘meals on wheels’ services for eight Victorian local government authorities. Its director, Mr Ian Cook, and his wife Mrs Dena Cook have been running the business since around 1986. Mr Cook is the sole director of the plaintiff. His son, Ben Cook, is the plaintiff’s general manager. Mr Cook’s brother, Michael Cook, has been a food safety supervisor since 2011.
The defendant to this application is the Victorian Department of Human Services (‘DHHS’). DHHS is, among other things, responsible for public health and safety and the administration of the Food Act 1984 (Vic) (‘Food Act’), which has the following objects:
(a) to ensure that food for sale is both safe and suitable for human consumption;
(b) to prevent misleading conduct in connection with food; and
(c) to provide for the application in Victoria of the Food Standards Code.[1]
[1]The Food Standards Code is a code developed and adopted by the State and Commonwealth governments, along with the government of New Zealand, which regulates the production, labelling, advertisement and sale of food.
DHHS shares the responsibility for regulating the sale of food, and the health and safety of premises at which food for sale is prepared and from which food is sold with local government authorities, including the City of Greater Dandenong (‘Council’), where the plaintiff’s premises are located.
This proceeding was issued in the aftermath of the death of an elderly woman in a hospital supplied with pre‑prepared meals produced by the plaintiff.
On or around 13 January 2019, an 86 year old woman (‘patient’) was admitted to the Knox Private Hospital. On or about 23 January 2019, a test taken by the hospital revealed that the patient became infected with listeria monocytogenes (‘listeria mono’) during her hospital stay.
DHHS suspected that food contamination may have caused the patient’s illness, and commenced investigations.
On 31 January 2019, the Council informed Mr Cook that samples needed to be taken from the plaintiff’s premises at Zenith Road, Dandenong South.
On 1 February 2019, Ms Kim Rogerson, an environmental health officer employed by the Council, attended the plaintiff’s premises and took swabs from surfaces in the kitchen and kitchen utensils, and samples from sandwiches produced by the plaintiff and from ingredients used in the sandwiches.
On or about 4 February 2019, the patient died. The cause of death was said to be acute pulmonary oedema precipitated by ischemic heart disease, with listeria mono contributing to the cause of death. The plaintiff does not concede that the patient’s fatal illness was caused by her consuming food produced by the plaintiff.
On 11 February 2019, the Microbiological Diagnostic Unit of the public health laboratory at the University of Melbourne issued a report to the effect that listeria mono was detected in corned beef and ham used by the plaintiff to make sandwiches. Listeria mono was also detected in sandwiches in which corned beef and ham were used as fillings. However, this report did not show what concentration of listeria mono was present. A later report issued on 28 February 2020 by the same laboratory showed that the level of listeria mono detected in food samples taken from the plaintiff was less than 100 cfu/g, the microbiological limit set by Food Standards Code.
On 18 February 2019, Ms Elizabeth Garlick, another environmental health officer employed by the Council, inspected the plaintiff’s premises for the first time. During this visit, Ms Garlick found a live slug on the floor at the plaintiff’s premises.
On 19 February 2019, Ms Garlick attended the plaintiff’s premises with a senior environmental health officer employed by the Council, Mr Gareth Little-Hales. During this visit, Ms Garlick served on the plaintiff:
(a) an order issued pursuant to ss 19(1) and (2) of the Food Act which included 37 items for corrective action (‘first section 19 order’); and
(b) an order issued pursuant to s 19W of the Food Act which included directions in respect of staff training, and audits to be undertaken at the plaintiff’s premises.
Further, the section 19 order stated that Ms Garlick was ‘satisfied from [her] report dated 18 Feb’ that the plaintiff’s premises ‘is in an unclean and unsanitary condition and is in a state of disrepair’. The section 19 order identified 37 corrective actions required to be addressed within the following weeks and months.
On 20 and 21 February 2019, Ms Garlick attended the premises with Ms Leanne Johnson of the Council, for further inspections. No official of DHHS attended the plaintiff’s premises at any time between 18 and 21 February 2019.
On 21 February 2019, at around noon, Ms Johnson told Ben Cook that she had spoken to DHHS over the phone and had been told by DHHS that ‘Chief Health Officer from State Victoria just said cease production now’. At about 3.44pm on the same day, Ms Johnson said to Ben words to the effect that ‘my job today is that I have to walk away satisfied that the food being produced tomorrow is safe. DHHS has emailed through a request for closure and it’s on council to demonstrate that the food is safe’.
On 22 February 2019, at about 4.00 am, Ms Johnson attended the plaintiff’s premises with another council officer, and served a closure order under s 19 of the Food Act dated 21 February 2019 (‘closure order’) requiring the plaintiff to:
(a) immediately cease the production of food on the premises; and
(b) destroy all food produced on the plaintiff’s premises since 13 January 2019.
The closure order was issued and signed by Dr Brett Sutton, who was then the acting Chief Health Officer of Victoria. The closure order stated that Dr Sutton was ‘satisfied from the report of an authorized officer of the Department’s Food Safety Unit that the food being prepared, sold or otherwise handled at the plaintiff’s premises was unsafe.’ However, the plaintiff was not served with the report of the authorised officer referred to in the closure order, and has still not been provided with a copy of any such report.
Mr Cook also exhibited a letter from Dr Sutton to the City of Ballarat dated 21 February 2019, one of the plaintiff’s customers, directing the Council to immediately destroy all food produced by the plaintiff. It is not clear from the evidence whether similar letters were sent to some or all of the plaintiff’s other customers. However, Mr Cook deposed that the plaintiff had to issue credit notes to customers in the amount of $16,739.81, and wrote off invoices with a total value of $178,679.40 on account of destroyed food. On 22 February 2019, the plaintiff itself destroyed food products valued at $144,626.79 in accordance with the closure order.
On 22 February 2019, at around 12.50pm, Ms Garlick inspected the plaintiff’s premises with a colleague from the Council and two representatives from DHHS. To the knowledge of Mr Cook, this was the first time that DHHS officers attended the plaintiff’s premises during the relevant period.
On 23 February 2019, at around 4.45pm, the plaintiff was served with a variation to closure order issued under s 19 of the Food Act signed by Dr Sutton (‘varied closure order’). The varied closure order required the plaintiff to, among other things, implement a microbiological test and hold program approved by DHHS for the plaintiff’s extended shelf life foods, texture modified foods and MAP Foods (‘test program’).
The test program required the plaintiff not to distribute food produced by it until it had been tested for listeria. Testing of food samples take three to ten working days. Therefore, food supplied for the purposes of the test program had to be discarded after testing, because most of the food that the plaintiff produced typically had a shelf life of only five days.
On 26 February 2020, the Doherty Institute at the University of Melbourne produced a report which identified the genotype of the listeria mono present in the samples taken from the plaintiff to be ‘highly related to’ the listeria mono present in the sample taken from the patient; and the listeria mono present in food samples taken in Western Australia and Queensland. However, the plaintiff did not supply any food products in Western Australia or Queensland in 2019.
In March 2019, whilst the varied closure order was still in operation, additional visits were made to the plaintiff’s premises by DHHS officers and Council officers, including Ms Garlick and Ms Johnson.
On 28 March 2019, Dr Sutton revoked the varied closure order, as he was satisfied that the varied closure order had been complied with for the purpose of s 19 of the Food Act.
However, the revocation of the closure order was too late for the plaintiff. By that time, it had lost all of its contracts. All of its staff have been retrenched, and the plaintiff says it has lost a business generating over $6 million in revenue per annum.
On 7 June 2019, the plaintiff and Mr Cook were served with a charge-sheet and a summons to attend the Magistrates’ Court in relation to various offences under the Food Act. Ms Johnson of the Council was the informant for 48 charges against each of the plaintiff and Mr Cook. The presence of the slug at the plaintiff’s premises was the basis of two of the charges against the plaintiff and Mr Cook.
On 3 October 2019, all charges against the plaintiff and Mr Cook were withdrawn by the informant.
The application for preliminary discovery
On 18 April 2019, the plaintiff’s solicitors, McKean Park, wrote to the defendant’s solicitors, Minter Ellison, to request documents underlying the issue of the closure order. Minter Ellison sent a ‘holding reply’ to the effect that it was awaiting instructions.
On 8 May 2019, McKean Park also lodged a request for documents under the Freedom of Information Act 1982 (Vic) (‘FOI request’).
On 25 October 2019, after some correspondence between the DHHS FOI Unit and McKean Park, the DHHS FOI Unit rejected the plaintiff’s FOI request on the basis that the scope of the FOI request needed to be narrowed.
On 7 November 2019, after some follow up correspondence from McKean Park, Minter Ellison refused to provide the requested documents, and suggested that the documents be sought by way of FOI request.
On 28 November 2019, the plaintiff filed an originating motion seeking an order pursuant to r 32.03 and/or r 32.05 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) that DHHS discover the following documents (‘requested documents’):
a.[T]he report of an authorized officer of the Department’s Food Safety Unit” referred to the first paragraph of the order issued and dated 21 February 2019 by Dr Brett Sutton, Acting Chief Health Officer in respect of the Plaintiffs premises at 2/12 Zenith Road, Dandenong South, Victoria pursuant to section 19 of the Food Act 1984 (Vic) (‘Food Act’) (‘Closure Order’).
b.The documents constituting the authority and delegation of the authorized officer for that report referred to in the Closure Order.
c.[T]he report of an authorized officer of the Department’s Food Safety Unit” referred to the first paragraph of Attachment 1 to the order issued and dated 23 February 2019 by Dr Brett Sutton, Acting Chief Health Officer in respect of the Plaintiffs premises at 2/12 Zenith Road, Dandenong South, Victoria pursuant to section 19 of the Food Act (‘Varied Closure Order’).
d.The documents constituting the authority and delegation of the authorized officer for that report referred to in the Varied Closure Order.
Notwithstanding the reference to rule 32.03 of the Rules in the originating motion, the plaintiff relies upon r 32.05 of the Rules, which provides as follows:
Discovery from prospective defendant
Where—
(a)there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description the applicant has ascertained;
(b)after making all reasonable inquiries, the applicant has not sufficient information to enable the applicant to decide whether to commence a proceeding in the Court to obtain that relief; and
(c)there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had in that person's possession any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist the applicant to make the decision—
the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c).
The plaintiff relied on the following affidavits in support of its application for preliminary discovery:
(a) an affidavit of Mr Cook sworn on 27 November 2019;
(b) an affidavit of David Brett of McKean Park sworn on 27 November 2019;
(c) an affidavit of Mr Brett sworn on 30 January 2020; and
(d) an affidavit of Mr Brett sworn on 31 January 2020.
The defendant relied upon an affidavit of Dr Angela Bone, the Deputy Chief Health Officer of DHHS, affirmed on 3 February 2020. This affidavit did not address any issues concerning the question of whether the plaintiff has reasonable cause to believe that it may have a right to relief against DHHS. Rather, Dr Bone deposed as to concerns on the part of DHHS to keep the contents of the documents sought by the plaintiff confidential.
On 18 December 2019, after the plaintiff filed its application for preliminary discovery, McKean Park wrote to Minter Ellison once again to request the requested documents.
On 29 January 2020, Minter Ellison offered to provide documents on a without prejudice and confidential basis, asserting that DHHS was entitled to claim an exemption in relation to the FOI request.
On 31 January 2020, one business day prior to the hearing of the application, McKean Park rejected DHHS’s insistence upon confidentiality as being unnecessary, because the implied undertaking not to disclose documents produced pursuant to a court order (‘Harman undertaking’) would apply to documents discovered by DHHS pursuant to any order of this Court.
Potential causes of action
The plaintiff seeks the requested documents in order to determine whether it should bring a proceeding against DHHS, Mr Sutton, the Council, and/or Ms Garlick and other Council officers for the tort of misfeasance or any other cause of action. The plaintiff considers that Ms Garlick might have abused her powers under the Food Act, and that Dr Sutton might have issued the closure order without a proper basis.
Mr Cook’s affidavit went into some detail regarding his allegation that Ms Garlick planted a slug at the plaintiff’s premises (which is prima facie a malicious act), based on the following matters:
(a) Mr Cook was told by Ms Rogerson that Ms Garlick said words to the effect that she believed that she was assigned to a geographical area comprising of manufacturing food industries and large retail businesses to ‘take people to court’. Ms Rogerson also commented in an interview reported in a new article that the Council ‘went after Cook with such determination to shut its business down’;
(b) Michael Cook and another staff member of the plaintiff observed that Ms Garlick behaved strangely on the plaintiff’s premises, such as feeling the inside of her two pockets located at the front of her smock type blouse just before the slug was found;
(c) the plaintiff’s pest controller, Hayes Pest Control, had attended the plaintiff’s premises only three days before Ms Garlick’s inspection and did not report on any slug activity on 15 February 2019; and
(d) the weather conditions in the relevant period were not conducive to slug activity.
Relevant principles
In a decision published while judgment in this application was reserved, I summarised the principles applicable to applications for preliminary discovery, as follows:
The authorities and principles in relation to each of the prerequisites were recently considered and summarised by Derham AsJ in Victorian Taxi Families Inc & Anor v Taxi Services Commission.[2]
[2][2018] VSC 594.
To paraphrase, the relevant principles are as follows:
(a)in relation to the first prerequisite, it is not necessary for an applicant to establish a prima facie case, and it is generally not appropriate to delve into the merits of a possible cause of action: rather, the applicant must establish sufficient facts to enable the Court to reach an objective conclusion that the applicant may have a right to relief;
(b)in relation to the second prerequisite, it is sufficient for an applicant to show that, notwithstanding they had made all reasonable enquiries, the information generated by those enquiries is insufficient for the applicant to make a prudent, but realistic, decision whether to issue proceedings, having regard to the strength and quantum of the applicant’s claim and the availability of potential defences; and
(c)in relation to the third prerequisite, the applicant must show that it is likely that the respondent has in its possession, custody or power documents which would materially assist the applicant to make a decision to bring a proceeding.
Further, numerous authorities have emphasised that the rule needs to be applied benevolently. However, as observed by Riordan J in Alex Fraser Pty Ltd v Minister for Planning[3] (omitting footnotes):
[3][2018] VSC 391.
Although the jurisdictional threshold is low, its satisfaction only empowers the Court to exercise its discretion. In the exercise of its discretion, the Court can control any excesses; and assess whether there may be real benefit in making the order. It will be entitled to weigh the full range of relevant matters in determining whether an order is in the interests of justice – including the following:
(a)The level of inconvenience and cost that will be caused to the respondent.
(b)Whether discovery may cause commercial or other damage to the respondent.
(c) Whether the respondent will be reimbursed for its costs.
(d)Whether an order would be inutile because the documents are privileged.
(e)The prospect of the documents sought providing the information required by the applicant.
(f)Whether the fact that there is no real prospect of success is apparent or discovery will not serve any useful purpose. However, delving extensively in the merits of the existence of a possible cause of action will usually not be appropriate.[4]
[4]Fair Go Group Pty Ltd v Riseley [2020] VSC 27 [29]-[31].
Submissions
Senior counsel for the plaintiff submitted that each prerequisite under r 32.05 of the Rules has been satisfied.
In relation to the first prerequisite, senior counsel for the plaintiff referred to the decision of the Federal Court in Gold Coast Marine Aquaculture Pty Ltd v HTC Trading Pty Ltd,[5] where Anastassiou J held that it was unnecessary in a preliminary discovery application to establish each and every element of a cause of action in order to show that the applicant has a reasonable belief that that a prospective defendant may be liable to the applicant since the tort of misfeasance was not a common tort. The plaintiff enumerated the elements of the tort of misfeasance in public office, as follows:
[5][2019] FCA 1995, [27].
(a) there was an invalid or unauthorised act;
(b) the act was done maliciously;
(c) the act was done by a public officer;
(d) the act was done in the purported discharge of the public officer’s public duty; and
(e) the act causes loss or harm to the plaintiff.
Senior counsel for the plaintiff observed that a plaintiff in an action for misfeasance in public office does not have to establish a specific intention on the part of a public official to injure a person. Recklessness may suffice.[6]
[6]Northern Territory v Mengel (1995) 185 CLR 307, 347.
Senior counsel for the plaintiff submitted that the issue of the closure notice was clearly an act done by a public officer in the purported execution of his duty. Further, the overwhelming conclusion to be drawn from the evidence is that the closure notice has caused the plaintiff immense loss and damage. He submitted that the plaintiff had reasonable cause to believe that the closure notice was invalid.
Section 19(1) of the Food Act provides as follows:
Orders relating to food premises
(1)This section applies if the relevant authority is satisfied from the report of an authorized officer that—
(a)a food premises is in an unclean or unsanitary condition or in a state of disrepair; or
(b)food being prepared, sold or otherwise handled at a food premises is unsafe or unsuitable; or
(c)food is prepared, sold or otherwise handled at a food premises in a manner that makes it likely the food is unsafe or unsuitable.
Senior counsel for the plaintiff submitted that Dr Sutton did not validly exercise his powers under the Food Act for the following reasons:
(a) Dr Sutton did not satisfy the pre-condition under s 19(1)(b) of the Food Act in issuing the closure order and varied closure order. Section 4E(2)(d) of the Food Act provides that food is not ‘unsuitable’ if it ‘contains any matter or substance that is permitted by the Food Standards Code.’ The Food Standards Code does not prohibit listeria mono in ready-to-eat foods if the concentration is lower than 100 cfu/g. Dr Sutton did not rely on any evidence of the concentration of listeria mono in food produced by the plaintiff in exercising his powers under s 19(1) of the Food Act. Accordingly, there was no evidence before him that food produced by the plaintiff was ‘unsafe or unsuitable’;
(b) given that no officer from DHHS inspected the plaintiff’s premises prior to the issue of the closure orders, it is unclear how Dr Sutton was satisfied from a report ‘by an authorised officer of the department’s food safety unit’ that a closure order was necessary;
(c) procedural fairness is implied as a condition of the exercise of a statutory power unless expressly excluded. Dr Sutton did not accord the plaintiff the right to be heard to the plaintiff before making the closure order; and
(d) Dr Sutton’s decision may be tainted by actual or apprehended bias if Dr Sutton relied on any report by the Council in making his decision to make the closure order. The Council has an interest in the business of Community Chef, a competitor of the plaintiff. The Chief Executive Officer of the Council is a member of the board of Community Chef, and the Council is a shareholder of Community Chef. The DHHS has also provided capital grants to Community Chef.
Senior counsel for the plaintiff submitted that Ms Garlick may have abused her powers under the Food Act for the following reasons:
(a) there is evidence that Ms Garlick has expressed the view that she was appointed to her current position to ‘take people to court’;
(b) many of the 37 items of rectifications listed by Ms Garlick in the first section 19 order were considered by the plaintiff to be ‘false’ and ‘erroneous’; and
(c) the 48 charges against the plaintiff and Mr Cook were withdrawn prior to trial, which suggests that the charges may have been unfounded.
Senior counsel for the plaintiff submitted that it is possible if that malice or recklessness is established on the part of the Council or its officers, that may have tainted the decision of Mr Sutton to issue the closure order, if the Council was his sole source of information regarding the plaintiff’s premises and products.
Counsel for DHHS acknowledged that the threshold for the first prerequisite is low, but emphasised that reasonable belief requirement is an objective test, so the question of what the plaintiff believes is not relevant to the application.
Counsel for DHHS relied on the decision of Warren CJ in Australian Football League v Stadium Operations Limited[7] where, for the purposes of meeting the prerequisite under the Rules, the applicant must rely upon more than a ‘flimsy foundation’ or a ‘mere hunch’.[8] Counsel for DHHS referred to the Federal Court decision of Rush v Commissioner of Police,[9] where Finn J dismissed an application made for preliminary discovery for a possible cause of action in misfeasance in public office on the basis that the applicant could only advance ‘a mere possibility’ of a claim against the respondent to the application. Counsel for DHHS further submitted that the requested documents would not assist the plaintiff in revealing the statement of mind of the decision makers, such that the requested documents would not assist the plaintiff to determine whether or not to issue a proceeding.
[7][2009] VSC 264.
[8]See also Beston Parks Management Pty Ltd v Sexton [2008] VSC 392.
[9][2006] FCA 12.
In relation to the second prerequisite under r 32.05, senior counsel for the plaintiff submitted that it made four requests to the defendant for the requested documents over an eight month period and DHHS was unresponsive, despite being a model litigant. In parallel to these requests, the plaintiff also lodged a FOI request, even though there was no requirement that a FOI request must be made before making a preliminary discovery application. In Roads and Traffic Authority of NSW v Australian National Car Parks Pty Ltd,[10] the New South Wales Court of Appeal upheld a decision to allow an application for preliminary discovery without any prior attempt to make a FOI request.[11]
[10][2007] NSWC 114.
[11]Ibid, [29]-[32].
In relation to the third prerequisite under r 32.05, senior counsel for the plaintiff submitted that it needed to review any report that Ms Garlick that might have supplied to the DHHS, and any other report that Dr Sutton may have relied upon in issuing the closure order to determine whether it should issue a proceeding for misfeasance in public office, and to evaluate the strength of such a claim, prior to issuing complex and expensive legal proceedings. Counsel for DHHS submitted that the requested documents would not assist the plaintiff to determine Dr Sutton’s state of mind for the purpose of bringing an action for misfeasance in public office.
Counsel for DHHS submitted that, in the event that an order for preliminary discovery was made by this Court, strict confidentiality provisions should be imposed upon the plaintiff and its officers. DHHS contended in its outline of written submissions that any order for preliminary discovery be subject to an ‘appropriate confidentiality regime’, which may include the following provisions:
(a)keep the documents (including the contents and information contained therein) strictly confidential at all times;
(b)that access to the documents be limited to the directors of the Plaintiff and its legal advisors; and
(c)that the documents be used solely for the purpose of the Plaintiff’s determination as to whether to commence proceedings against the Department’s officers for misfeasance in public office and for no other purpose.
Counsel for DHHS, relying upon the affidavit of Dr Bone, submitted that the requested documents relate to actions taken in ‘a public health crisis’. DHHS submitted that any release of the discovered documents without confidentiality provisions would pose a risk of ill-informed third parties criticising actions taken by the DHHS.
In relation to the issue of keeping the discovered documents confidential at the preliminary discovery stage, counsel for the plaintiff submitted that the usual Harman undertaking would provide the DHHS with sufficient protection.
Counsel for the plaintiff relied on the decision of Elliott J in Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23)[12] as support for the principle that a confidentiality order should only be made if it is necessary for the administration of justice. DHHS has not established that imposing a confidentiality regime was necessary for the administration of justice.
[12][2019] VSC 417.
Discussion
It is apparent from the evidence that the second and third pre-requisites of rule 32.05 are easily satisfied. First, there is no question that DHHS has the requested documents. Secondly, given the difficulties faced by any plaintiff in establishing that a public official is liable for misfeasance in public office, it is not unreasonable for the plaintiff to seek further information before making a decision to embark upon risky and costly litigation. Finally, notwithstanding the suggestion made by DHHS’s solicitors in correspondence that the plaintiff pursue the requested documents by way of an FOI request, DHHS did not contend at the hearing that the plaintiff had not made all necessary inquiries. In any event, given the road blocks which have been thrown up against the plaintiff by the FOI Unit, I would not have accepted such a submission.
Therefore, the only real issue in dispute in relation to the threshold question is whether the plaintiff has reason to believe that it may have a right to relief against DHHS. It is important to note that relief under the Rule is not (contrary to the submissions of the plaintiff) available for the plaintiff to determine whether to bring a claim against the Council. The language of the Rule makes it clear that the party from whom documents are being sought must be the prospective defendant. Any light the requested documents may shed on the strengths and weaknesses of the plaintiff’s claims against the Council would be a collateral benefit to the plaintiff if preliminary discovery of the requested documents was ordered, but that of itself does not confer upon the plaintiff a right to preliminary discovery. The existence of such a collateral benefit goes no further than being a factor favouring the exercise of discretion in favour of the plaintiff.
In my view, while I accept that it is notoriously difficult for any plaintiff to establish all of the necessary elements of the tort of misfeasance in public office, and, in the current case, the plaintiff has not established even a prima facie case that Dr Sutton exercised his powers for an improper purpose, having regard to the relatively low threshold for determining whether the plaintiff has reasonable cause to believe that it might have a right to obtain relief from DHHS, it is appropriate to order that DHHS provide discovery of the requested documents. On the basis of the evidence advanced on behalf of the plaintiff, it may well be that Dr Sutton had little or no material before him to corroborate the reports provided by the Council, and may well not have had any microbiological test results available to him which could lead him to draw a conclusion that the food produced by the plaintiff was unsafe. Given the potential adverse consequences to the plaintiff of making a closure order, which were in fact realised, the plaintiff may well be able to advance an argument that Dr Sutton acted prematurely and/or recklessly in making the closure order.
Indeed, the difficulty facing the plaintiff in establishing the elements of the tort of misfeasance in public office highlights the potential benefit of ordering discovery of the requested documents to inform the plaintiff’s decision‑making process before it embarks upon risky and costly litigation. There is no doubt that DHHS has the documents in question, and no question of oppression arises.
Another relevant consideration with respect to this aspect of the application is that not only does the plaintiff need to make a decision whether to issue a proceeding against DHHS, but also, if it does make that decision, it will need to properly plead any allegations it makes against Dr Sutton, and the plaintiff and its solicitors will need to sign ‘proper basis’ certificates under the Civil Procedure Act 2010 (Vic). Given the elements of the tort of misfeasance in public office (which bring into focus the state of mind of the decision-maker), and the serious nature of the allegations which might be made against Dr Sutton, the rules of pleading require that allegations that a public official has acted maliciously or recklessly must be made with some degree of particularity.
Counsel for DHHS submitted that the requested documents will not assist the plaintiff to determine, or draw any inferences regarding Dr Sutton’s state of mind when he issued the closure order. With respect, that submission is difficult to accept. It may well be that the plaintiff is able to draw inferences from what information was not before Dr Sutton as well as what information was before him. It seems to me to be highly unlikely that the requested documents will be of no forensic benefit to the plaintiff.
I do however agree that it is appropriate to provide for a confidentiality regime with respect to the requested documents, of the kind suggested by DHHS. First, the evidence of Dr Bone, a very senior official with DHHS, deposes as to the importance of the maintenance of confidentiality in communications between public officials in relation to public health crises. Dr Bone deposed as follows:
Orders under section 19 of the Food Act are often required to be made urgently and on short notice immediately following a public health crisis, which includes the death of a member of the public from listeriosis, particularly where vulnerable members of the community are considered at risk of infection from the same source.
In order for a decision to be made in those circumstances, there needs to be direct and robust communication between DHHS employees, including relevant authorities and authorised officers under the Food Act. The very nature of a public health crisis is that it is time critical and evolving. Issues, concerns and risks need to be raised, discussed and considered unhindered, and actions need to be taken, without fear of undue scrutiny. In order to ensure informed decision making, communication must be free and forth coming and speed of action must be swift and direct. Anything less, risks DHHS’s ability to take appropriate action to limit the impact on the community of a public health crisis.
I am concerned that if the Requested Documents are provided to the Plaintiff without appropriate confidentiality provisions, there is a risk of uninformed or ill-informed third parties making public comment and criticism of individuals and actions. This in turn could limit the reporting of incidents to DHHS and therefore limit the impact of DHHS’ actions to protect the community, as well as undermining the community's confidence in DHHS.
For these reasons, it is of paramount importance that confidentiality provisions are in place to ensure that the Requested Documents remain confidential and that the actions taken by DHHS, including the relevant authorities and authorised officers under the Food Act, following a public health crisis is not diluted by concern of undue, unnecessary and uninformed scrutiny following an incident.
Accordingly, the issue here is whether the disclosure of documents of the nature of the requested documents would have a chilling effect upon the speed and frankness of communications between public officials in crisis situations. While DHHS does not resist the plaintiff’s application on this ground, issues of this nature tend to arise in cases where (mainly) public officials seek to prevent or restrict disclosure of sensitive documents on the grounds of public interest immunity. In such cases, the Court is required to undertake a balancing exercise between the interests of the party seeking disclosure of the documents in question, thus furthering the public interest in the due administration of justice, and the public interest in maintaining confidence in sensitive communications regarding government policy and actions.
A concise summary of the principles of public interest immunity and the circumstances where such principles might be engaged is to be found in the Court of Appeal decision in Ryan v State of Victoria,[13] a dispute concerning the disclosure of documents describing police procedures for managing public protests. Tate JA summarised the relevant common law principles as follows (citations omitted):
53The common law doctrine of public interest immunity protects from compulsory disclosure documents or information where disclosure would be injurious to the public interest. Assessing whether a claim of public interest immunity ought to be upheld requires the court to weigh the public interest that would be harmed by the production of the evidence against the frustration or impairment of the administration of justice if the evidence was withheld.
…
56It is well accepted that the categories of public interest are not closed. Categories of public interest include claims made in relation to national security, Cabinet deliberations, high-level advice to government, intra-government communications or negotiations, police informers, other types of informers, police investigations, and the activities of intelligence officers. Under the common law, a ‘rough but accepted’ distinction is drawn between ‘class claims’ and ‘contents claims’; that is, between public interest immunity claims the subject of which is a document falling within a specific ‘class’ irrespective of its content, for example a Cabinet document, and a document attracting the immunity because of the sensitive nature of its ‘content’.
57In undertaking the balancing exercise, the court will generally have regard to a number of considerations. These include whether non-disclosure would impede the accused’s right to a fair trial, the evidentiary value and importance of the documents to the issues, whether ordering disclosure would cause sources of information to ‘dry up’, whether preserving candour would facilitate the public function in issue, and whether the material is already in the public domain or has current sensitivity. The court is also to accord weight to an assertion by an authorised representative of government that the public interest would be at risk in the event of disclosure.[14]
[13][2015] VSCA 353.
[14]Ibid, [53], [56]-[57].
While no public interest immunity is claimed by DHHS in the current case, the evidence of Dr Bone raises similar issues which arise in claims for public interest immunity, such that it would have been arguably open to DHHS to make such a claim. I consider that it is open to me to take into account such issues when exercising my discretion not only in determining whether to order discovery, but regarding the terms upon which discovery ought to be ordered.
Counsel for the plaintiff submitted that a confidentiality regime conferring protection over and above the Harman undertaking should only be imposed if it is necessary for the administration of justice. That is correct. However, the authorities referred to by counsel for the plaintiff concerned were commercial cases, where the issue before the Court was the need to strike an appropriate balance between the purely private interests of the party seeking to limit disclosure of documents, and the public interest in the open administration of justice. Here, the balance to be struck is between two competing public interests: the public interest in the open administration of justice (in addition to the private interest of the plaintiff in having access to the requested documents), and the public interest in ensuring that public officials can respond quickly and appropriately in a crisis, free of concern that their communications regarding the crisis at hand being later subject to widespread publication.
In my view, the public interest in the open administration of justice carries far less weight in circumstances where there is no proceeding on foot. Significantly, the very purpose of providing preliminary discovery in a case of the current kind is to assist the plaintiff to determine whether to bring a proceeding at all. Until it does so, there is no invocation of the justice system to which to which the public interest in the open administration of justice can attach. Conversely, in the absence of any confidentiality regime, DHHS could be put at risk of there being disclosure of its confidential documents in circumstances where no proceeding may ever be issued.
In Oswal (Ruling No 5),[15] I held that the stage that a proceeding had reached was a relevant consideration in determining whether to impose a confidentiality regime with respect to commercially sensitive and confidential documents, noting that the principle of open justice carries greater weight during the course of a trial, where provisions of the Open Courts Act 2013 (Vic) circumscribe the circumstances in which evidence could be kept confidential from the public. Accordingly, the Court is generally more amenable to putting in place a confidentiality regime at the discovery and pre-trial preparation stage of a proceeding than at trial. By extension, a similar approach would also apply to preliminary discovery.
[15]The Oswal matters – in trial rulings – confidentiality, discovery and privilege [2017] VSC 19 [8].
The distinction between documents discovered in the course of court proceedings and documents tendered in evidence at trial has long been recognised by the authorities. In Hogan v Australian Crime Commission,[16] the High Court was concerned with the question of the application of a provision of the Federal Court of Australia Act 1976 (Cth) which allowed the court to restrict publication of documents on the court file which had been tendered in court. The Court stated as follows (citations omitted):
Leave of the Federal Court for News and Fairfax to inspect the Inference Schedule and the Accounting Advices should not be given if there remains in force an order made under s 50 which forbids of relevantly restricts their publication. In the absence of such an order, the question in such a case would be whether in circumstances where the evidence was tendered by a particular party that party might successfully oppose the making of an order under O 46, r 6(3) for inspection, upon the ground that the evidence contained material of a personal or private nature. Emmett J distinguished the situation respecting material on the file of the Court but not tendered and admitted into evidence, and said that the interests of open justice were not engaged there and that leave under O 46, r 6(3) should not be granted in such a case. His Honour was correct in that conclusion.
However, if the file material has been admitted into evidence the interests of open justice are engaged. Where, as here, the party in question adduces no evidence of apprehended particular or specific harm or damage, particularly by disclosure of the Accounting Advices as Emmett J noted, leave properly will be granted under O 46, r 6(3).
[16](2010) 240 CLR 651.
That there is a distinction between discovered documents and documents tendered in open court was recognised by the Court of Appeal of Western Australia in Alcoa of Australia Ltd v Apache Energy Ltd,[17] where McLure P (with whom Buss and Newnes JJA agreed) referred to the principle of open justice as being an irrelevant consideration in the discovery process. His Honour stated as follows:
On further reflection, I have departed from my preliminary assessment that the current approach to open justice may be relevant to the determination of the issues in this appeal. The principle of open justice is not to be confused with the right to procedural fairness. Although courts at the trial stage may in the future be more reluctant to suppress confidential commercial information and to redact their reasons to protect the parties commercial interests, the principle of open justice does not apply at the production/inspection stage (cf Hadid v Lenfest Communications (1996) 70 FCR 403, 406).
It does not apply because the existence and scope of the substantive implied obligation relating to discovered documents is positively inconsistent with an extension of the principle of open justice into this area. Although that doctrine will or may affect the fate of discovered documents adduced in evidence at trial, that is usually only a small proportion of the discovered documents.[18]
[17][2014] WASCA 148.
[18]Ibid, [52]-[53].
Accordingly, the plaintiff’s submissions to the effect that principles of open justice apply to the provision of the requested documents are somewhat misplaced, and are indeed inconsistent with the plaintiff’s acknowledgement that it is bound by the Harman undertaking. The question in the current case is whether the protection afforded by the Harman undertaking is sufficient having regard to the character of the requested documents and the circumstances of the case, noting that the requested documents are of a character which might arguably be immune from disclosure on the basis of public interest immunity.
I do accept there is a public interest in encouraging, or at least not impeding, the frank and timely exchange of information during the course of public crises, and I accept that requiring disclosure of such communications in an uncontrolled manner may have a chilling effect upon such communications. In my view, that concern carries greater weight than any concern regarding criticisms by ‘uninformed or ill-informed’ third parties, which presumably has been prompted by media interest in the incident which initiated DHHS’s action against the plaintiff, media coverage critical of the conduct of the Council and sympathetic to the plight of the plaintiff. While there is no evidence before me that the plaintiff would breach the Harman undertaking, the circumstances of the case do highlight the need to ensure that those to whom the requested documents are disclosed have their obligations of confidentiality brought to the forefront of their minds. In any event, if the imposition of a confidentiality regime carries with it real difficulties or other inconvenience for the plaintiff, I will grant liberty to apply to vary the orders I make with respect to the confidentiality of the requested documents.
I shall hear further from the parties on the appropriate form of order and the question of costs.
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