Ibrahimi v Commonwealth of Australia (No 8)

[2016] NSWSC 1539

Supreme Court

New South Wales

Medium Neutral Citation:	Ibrahimi & Ors v Commonwealth of Australia (No 8) [2016] NSWSC 1539
Hearing dates:	1 November 2016
Date of orders:	01 November 2016
Decision date:	01 November 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [11]
Catchwords:	EVIDENCE – Public interest immunity – No point of principle
Cases Cited:	Eastman v The Director of Public Prosecutions (No 2) (2014) 9 ACTLR 178; [2014] ACTSCFC2 Nicopoulos v Corrective Services New South Wales (2004) 148 A Crim R 74; [2004] NSWSC 562
Category:	Procedural and other rulings
Parties:	Median Nazar Ibrahimi & Ors - Plaintiffs Commonwealth of Australia - Defendant
Representation:	Counsel:    S Prince - Plaintiffs A S Bell SC, R Jedrzejczyk - Defendant   Solicitors: The People’s Solicitors - Plaintiffs Australian Government Solicitor - Defendant
File Number(s):	2013/377410
Publication restriction:	Nil

Judgment – EX TEMPORE (REVISED)

1. In the course of these proceedings, which commenced before me on 26 September 2016, a notice to produce was issued to the defendant by those acting on behalf of the plaintiffs seeking the production of various documents. The documents were initially produced in what could only be described as a heavily redacted form. It seems that following that initial production, copies of the documents were produced in a less redacted form. How those particular circumstances came about, and why it was that a decision was taken that the documents should be so heavily redacted in the first instance, has not been explained. The documents go, in general terms, to the issue of the nature and extent of threat levels which are said to have existed at or about the time of the entry of suspected illegal entry vessel 221 into the waters surrounding Christmas Island in December 2010.

2. The documents were produced in their less redacted form while I was in the course of hearing final submissions. Senior counsel for the plaintiffs indicated there was a possibility that in the light of their production, it would be necessary to have one or more witnesses who had given evidence in the proceedings recalled for further cross-examination. Because of the fact that the documents had only just been provided to senior counsel, some further time was requested in order to consider their content.

3. It seems that in that intervening period there were discussions held between the legal representatives of the parties, in which those acting for the defendant endeavoured to explain the nature and content of the documents to those appearing on behalf of the plaintiffs. To assist in that process two affidavits were prepared, one of Andrew Nigel Duff of 20 October 2016 and another of Kimberley Anne Wilson of 25 October 2016. I have read both those affidavits for the purpose of dealing with this issue. I have also read an affidavit sworn by Kingsley Liu, the solicitor for the plaintiffs, on 25 October 2016. That affidavit sets out, in general terms, the position of the plaintiffs in relation to the documents.

4. Regrettably, the discussions which took place did not entirely resolve the remaining issues. The plaintiffs press for production of the documents in an unredacted form. The defendant resists that production. In doing so, the defendant has foreshadowed making a claim for public interest immunity. In that regard the defendant has filed an affidavit of Irene Maria Sekler which foreshadows the nature of that claim. That affidavit also sets out a timetable for the provision of affidavit material in support of any such claim. As I remarked to senior counsel for the defendant on a previous occasion, I find that proposed timetable wholly unacceptable, and beyond what is reasonably necessary.

5. In an effort to expedite the resolution of this issue, it was agreed between parties that I be provided with the documents in their unredacted form and determine whether or not (to use a phrase adopted in some of the relevant authorities) it is "on the cards" that the material over which a claim for public interest immunity has been foreshadowed is likely to assist the plaintiffs.

6. I have undertaken that exercise and in doing so I have taken into account the affidavit material to which I have referred.

7. I have compared the unredacted documents with the documents in their redacted form, so as to enable me to ascertain those areas over which a claim may be made. Given the nature of the documents and their various classifications, it is obviously not appropriate for me to detail, in any way, their content. However, on the understanding that the issue to which the documents go is as I have articulated it, and having read the documents, I am not satisfied that it is on the cards that those parts which have been redacted from the copies provided to those acting for the plaintiffs are likely to assist in the resolution of any issues in the proceedings.

8. I should also say that even if I was so satisfied, and obviously without making any final determination of the matter, it could fairly be said that the redacted portions of the documents go to subject matter which, in general terms, falls into categories which are recognised to lend themselves to claims for public interest immunity.

9. If the matter reached the point of a public interest immunity claim being made, there is authority for the proposition that I would retain a power to admit evidence notwithstanding the fact that neither party has seen it, if I determined that it was in the interests of justice to do so: Nicopoulos v Corrective Services New South Wales (2004) 148 A Crim R 74; [2004] NSWSC 562; Eastman v The Director of Public Prosecutions (No 2) (2014) 9 ACTLW 178; [2014] ACTSCFC 2.

10. However, in view of the conclusion that I have reached, it is not necessary for me to pursue that issue any further.

11. I will return the unredacted documents which were provided to me to the custody of those acting for the defendant.

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Decision last updated: 10 October 2017