James, Dr B. v Secretary, Department of Primary Industry & Energy

[1994] FCA 719

'719 9't

JUDGMENT No. ..... .. ........ .. J ........ ....

FEDERAL COURT OF AUSTRALIA

NEW SOUTE WALES DISTRICT REGISTRY )	No NG 631 of 1994
GENERAL DIVISION	1

BETWEEN:

DR BART JAHBS

Applicant

AND :

SECRETARY, DEPARTMENT OF PRIHARP

INDUSTRY AND ENERGY

Respondent

C O W :	SACKVILLE J.
PLACE :	SYDNEY
DATE :	30 SEPTEMBER 1994

l1 OCT 1994

FEDERAL COURT OF

AUSTRALIA PRINCIPAL

REASONS FOR JUDGMENT R601STRY

HIS HONOUR: An application has been made by Mr Johnson, on behalf of the respondent, that certain documents annexed to an affidavit of MS Howell sworn 23 September 1994 in effect remain confidential to the legal advisers to the applicant and to the applicant himself. Further, Mr Johnson wishes the applicant himself to be subject to constraints concerning publication of the substance of the documentary material.

the applicant only to the applicant himself, subject to certain	conditions. Those conditions included a requirement that no copy
of the letter or any part of them should be provided to the applicant. Furthermore, the applicant was not to disclose to any person the nature or contents of the documents.
Mr Johnson has today, in the course of the hearing, sought to continue the orders of Lindgren J. but in what seems to me to be a somewhat different context. We have now reached the hearing. Mr Pearce proposes to read the affidavit of MS Howell to which these documents are annexed. Mr Pearce also has foreshadowed that there will be some cross-examination relating to these documents. Mr Johnson submits that the court should be closed, as I understand his position, while the affidavit containing these documents is read. He also submits that the court should be closed while the examination and cross-examination of Mr Macdonald takes place. This is because some reference to these documents may be made in the course of the examination and cross- examination.
Mr Johnson has referred me to a number of cases involving public
interest immunity. These include Alister v The Oueen (1984) 154
CLR 404 and Sankev v Whitlam (1978) 142 CLR 1. Those cases and a number of others to which Mr Johnson referred, concern the circumstances in which documents ought to be produced to the court for the purposes of inspection by a party to litigation and if so, upon what terms. That stage in this litigation was reached when Lindgren J. made his orders. Of course, the documentation has been seen by the legal advisers to the
applicant and the substance of the documentation hae now been made known to the applicant himself.
While I do not doubt that the court has authority to ensure that the proceedings are conducted in private pursuant, for example, to 8.23 of the Federal Court Act 1976, there is an important issue of open justice that needs to be considered. I have had read to me an affidavit of Mr Hickey sworn 23 September 1994 upon which Mr Johnson relies. That affidavit indicates that the Australian Quarantine and Inspection Service ("AQIS") sent out documentation to its clients and possibly others. That documentation invited clients and others to bring to the attention of senior departmental managers of AQIS information that might be helpful in determining matters of concern to those clients. The documentation contemplates to situations where sensitive issues and confidential issues might be raised. Although perhaps it does not say so in express terms, the documentation indicatesthat complex and confidential issues will be handled sensitively by AQIS.
that any material produced in consequence of that invitation I can readily understand the concern of AQIS and the Minister
should not be made generally available. However, it is also necessary to bear in mind, particularly in the context of the principles of open justice, that there are many occasions when material that is regarded as confidential between parties is nonetheless divulged in court by reason of the compulsory processes of the law. It is necessary in all cases to engage in
an exercise that involves balancing the interests of the community in open justice with those of the particular parties or individuals concerned.
In this case although not without some misgivings, I am prepared to accept that an order ought to be made for non-publication of the privileged documents. Such an order would vindicate the interest of AQIS in not having widely disseminated what might be one set of responses to the invitations referred to in the affidavit of Mr Hickey. However, I do not think the evidence goes far enough to warrant me closing the court. I think that is a step that should be taken only with very considerable care. I am not persuaded that the confidentiality of any information supplied in response to an invitation is of such importance as to override the principle that the conduct of a case such as this ought to be dealt with in open court.
I should also note that I have been influenced by the absence of evidence that the privileged documents were in fact produced in
to Mr Hickey's affidavit. I do not by that say that I would have response to the invitation set out in the documentation annexed
reached a different concluaion had there been evidence to that effect. However, the evidence is in my view quite consistent with the information being provided in this case independently of the documentation distributed by AQIS to its clients.
In the circumstances I am prepared to make an order that there should be no publication of the contents of the terms or contents
of the letters which are documents 2.1 to 5.4 inclusive annexed to the affidavit of Claire Howell sworn 23 September 1994. That order restricting publication extends to the publication of the substance of those documents insofar as that may be revealed in the course of oral evidence in this case. The order that I have made affects not only the parties to the litigation and their legal advisers but those who may be in court while the evidence is dealt with.
There needs to be a qualification to that order. This is necessary to allow communication of the substance of the contents of the privileged documents as between the legal advisers to each party and in the case of the applicant, the applicant himself, and in the case of the respondent, the appropriate officers of the Department of Primary Industries and Energy. Now what counsel might do is give some consideration as to whether there needs to be any refinement of the terms of the orders. I will deal with any such application later on today, if that becomes necessary.

This matter was the subject of orders made by Lindgren J., the latest of which, at any event, was made on 29 September 1994, that is yesterday. The effect of those orders was that the relevant documents could be disclosed by the legal advisers to

I certify	that this and the preceding 4
pages are	a true copy of the Reasons for
Judgment	of the Honourable Justice
Sackville.
Dated:	bctober, 1994

Heard	I	30 September 1994
Place:	Sydney

Decision:	30 September 1994
Appearances:	Mr Pearce of counsel instructed by Geoffrey
Edwards h CO appeared for the applicant
Mr Johnson of counsel instructed by
Australian Government Solicitor appeared for the respondent