Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia - [2007] WASC 143

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LEIGHTON CONTRACTORS PTY LTD -v- PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA [2007] WASC 143

CORAM: LE MIERE J

HEARD: 17 APRIL 2007

DELIVERED : 28 JUNE 2007

FILE NO/S: CIV 1570 of 2006

BETWEEN: LEIGHTON CONTRACTORS PTY LTD (ABN 98 000 893 667)
Plaintiff
AND
PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA
Defendant

Catchwords:

Civil practice and procedure - Discovery and inspection - Public interest immunity - Whether there is public interest in non-disclosure - Whether disclosure necessary for fair disposal of matters in issue in proceedings - Court's discretion to inspect documents

Civil practice and procedure - Further and better discovery - Whether relevant document has been in defendant's possession, custody or power - Turns on own facts

Legislation:

Public Transport Authority Act 2003 (WA), s 25, s 26, s 27, s 28

Result:

Application for inspection dismissed
Application for further and better discovery dismissed, except in relation to excel spreadsheet

Category: B

Representation:

Counsel:

Plaintiff: Mr C G Colvin SC
Defendant: Mr J A Thomson

Solicitors:

Plaintiff: Mallesons Stephen Jaques
Defendant: State Solicitor's Office

Case(s) referred to in judgment(s):

Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394
Alister v The Queen (1983) 154 CLR 404
Alister v The Queen (1984) 154 CLR 469
Australian National Airlines Commission v Commonwealth (1975) 132 CLR 582
Beneficial Finance Corp Ltd v Australian Federal Police Commissioner (1991) 31 FCR 523
Burmah Oil Co Ltd v Governor & Company of the Bank of England [1980] AC 1090
Commonwealth of Australia v Northern Land Council (1993) 176 CLR 604; [1993] HCA 24
Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31; 171 ALR 379; [2000] FCA 453
Conway v Rimmer [1968] AC 910
CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; 22 WAR 48
National Tertiary Education Industry Union v Commonwealth [2001] FCA 610; (2001) 111 FCR 583
Sankey v Whitlam (1978) 142 CLR 1
Telstra Corporation Ltd (No 2) [2006] ACOMPT 10; 93 ALD 407

LE MIERE J: The plaintiff has applied by chamber summons for orders that the defendant allow the plaintiff to inspect documents numbered 1 ‑ 12 in Pt 2 of the first schedule of the defendant's list of discovered documents and a further order that the defendant give further and better discovery of documents falling into the category described in a schedule attached to the application. I will first consider the application for inspection.

The inspection application

The defendant provided discovery verified by an affidavit sworn by Richard Dorman Mann on 9 August 2006. The defendant claimed public interest immunity in respect of 12 documents.
Each of the documents is identified by Richard Damian Farrell, a principal policy officer within the office of the Minister for Planning and Infrastructure ("the Minister") in an affidavit sworn 16 April 2007. In that affidavit Mr Farrell describes the contents of each of the documents in respect of which the defendant claims public interest immunity. The documents fall into three broad categories:
(a)briefing notes to the Minister or the Premier;
(b)emails from Mr Mann to an officer of the Minister; and
(c)internal memoranda to the Minister.

Public interest immunity

The general rule is that the court will not order the production of a document, although relevant, if it would be injurious to the public interest to disclose it: Sankey v Whitlam (1978) 142 CLR 1 per Gibbs ACJ at 38. Determining the public interest requires an assessment of the net effect of two competing interests – the public interest whose protection demands non‑disclosure and that of the proper administration of justice which calls for disclosure of relevant material: Sankey v Whitlam (supra) per Gibbs ACJ at 38.
The circumstances in which a claim for public interest immunity may arise were considered by the High Court in Sankey v Whitlam (supra). Gibbs ACJ said (at 142 CLR 39‑40):
"However it has been repeatedly asserted that there are certain documents which by their nature fall in a class which ought not to be disclosed no matter what the documents individually contain; in other words that the law recognizes 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 … According to Lord Reid, the class would extend to 'all documents concerned with policy making within departments including, it may be, minutes and the like by quite junior officials and correspondence with outside bodies' …
One reason that is traditionally given for the protection of documents of this class it that proper decisions can be made at high levels of government only if there is complete freedom and candour in stating facts, tendering advice and exchanging views and opinions, and the possibility that documents might ultimately be published might affect the frankness and candour of those preparing them. Some judges now regard this reason as unconvincing, but I do not think it altogether unreal to suppose that in some matters at least communications between Ministers and servants of the Crown may be more frank and candid if those concerned believe that they are protected from disclosure. For instance, not all Crown servants can be expected to be made of such stern stuff that they would not be to some extent inhibited in furnishing a report on the suitability of one of their fellows for appointment to high office, if the report was likely to be read by the officer concerned. However this consideration does not justify the grant of a complete immunity from disclosure to documents of this kind."
Stephen J said (at 142 CLR 62‑3):
"Sometimes class claims are supported by reference to the need to encourage candour on the part of public servants in their advice to Ministers, the immunity from subsequent disclosure which privilege affords being said to promote such candour. The affidavits in this case make reference to this aspect. Recent authorities have disposed of this ground as a tenable basis for privilege. Lord Radcliffe in the Glasgow Corporation Case remarked [(1956 SC (HL) at p 20] that he would have supposed Crown servants to be 'made of sterner stuff', a view shared by Harman LJ in the Grosvenor Hotel Case [1965] Ch at p 1255] then, in Conway v Rimmer [1968] AC 901], Lord Reid dismissed the 'candour' argument but found the true basis for the public interest in secrecy, in the case of cabinet minutes and the like, to lie in the fact that were they to be disclosed this would 'create or fan ill‑informed or captious public or political criticism. … the inner workings of the government machine being exposed to the gaze of those ready to criticize without adequate knowledge of the background and perhaps with some axe to grind' …"
The principle of public interest immunity was considered further by the High Court in Commonwealth of Australia v Northern Land Council (1993) 176 CLR 604; [1993] HCA 24. At 176 CLR 614‑16, the majority of the High Court (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ) said:
"It should be observed at the outset that the documents for which the Commonwealth claims immunity from disclosure are documents which record the actual deliberations of Cabinet or a committee of Cabinet. They are not documents prepared outside Cabinet, such as reports or submissions, for the assistance of Cabinet. Documents of that kind are often referred to as Cabinet documents. When immunity is claimed for Cabinet documents as a class and not in reliance upon the particular contents, it is generally upon the basis that disclosure would discourage candour on the part of public officials in their communications with those responsible for making policy decisions and would for that reason be against the public interest. The discouragement of candour on the part of public officials has been questioned as a sufficient, or even valid, basis upon which to claim immunity. On the other hand, Lord Wilberforce has expressed the view that, in recent years, this consideration has 'received an excessive dose of cold water' [Burmah Oil Co Ltd v Bank of England [1980] AC 1090 at 1112].
But it has never been doubted that it is in the public interest that the deliberations of Cabinet should remain confidential in order that the members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be made. … It is not so much a matter of encouraging candour or frankness as of ensuring that decision‑making and policy development by Cabinet is uninhibited."
The majority of the High Court said, later (at 176 CLR 616):
"The classification of claims for public interest immunity in relation to documents into 'class' claims and 'contents' claims has been described as 'rough but accepted' [Burmah Oil Co Ltd v Bank of England at 1111]. It serves to differentiate those documents the disclosure of which would be injurious to the public interest, whatever the contents, from those documents which ought not to be disclosed because of the particular contents. Both upon principle and authority, it is hardly contestable that documents recording the deliberations of Cabinet fall within a class of documents in respect of which there are strong considerations of public policy militating against disclosure regardless of their contents [Lanyon Pty Ltd v The Commonwealth (1974) 129 CLR 650]. But, whatever the position may have been in the past, the immunity from disclosure of documents falling within such a class is not absolute. The claim of public interest immunity must nonetheless be weighed against the competing public interest of the proper administration of justice, which may be impaired by the denial to a court of access to relevant and otherwise admissible evidence."
The defendants rely on both the class of documents to which the Privileged Documents belong and the subject matter and nature of their contents.
One recognised class of documents is documents which pertain to the process of deciding policy at the higher levels of government.
In Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31; 171 ALR 379; [2000] FCA 453, the Full Federal Court held that the doctrine of public interest immunity protected a letter from a minister to the Prime Minister which sought the Prime Minister's agreement to raise particular matters in Cabinet. The Full Court held that although the letter "did not attract the high degree of protection which attaches to Cabinet documents disclosing Cabinet deliberations or which are likely to reveal such deliberations", disclosure of the contents of the letter would reveal the nature of matters considered by Cabinet and at least part of the Cabinet's deliberation of those matters. The Full Court said (at [43]‑[44]):
"Disclosure of the contents of the letter would therefore disclose the position of the minister, the arguments he wished to advance, and the topic which in all probability was discussed at the meeting …
When the evidence is balanced, the union has not established any exceptional circumstances that outweigh those militating against disclosure."
In National Tertiary Education Industry Union v Commonwealth [2001] FCA 610; (2001) 111 FCR 583, a claim for public interest immunity was upheld in respect of a submission which a Minister submitted to Cabinet for its consideration. Weinberg J discussed the principles governing inspection of high level documents such as Cabinet documents. Weinberg J observed that it has long been recognised that there are classes of documents that are of such vital interest to the State that documents belonging to them should not be produced for inspection. These include minutes of discussions between heads of government departments. His Honour referred with apparent approval to the statement of Lord Reid in Conway v Rimmer [1968] AC 910 at 952 that the most important reason why certain classes of documents ought not to be revealed is that such disclosure would create or fan ill‑informed or captious public or political criticism. His Lordship said that the business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind. Weinberg J concluded that inspection of the document would have the tendency to reveal Cabinet deliberations. His Honour decided that the document was not crucial to the union's case against the Commonwealth and did not prevent the union from putting the case it wished to put.
In Telstra Corporation Ltd (No 2) [2006] ACOMPT 10; 93 ALD 407 Goldberg J said at [42] that it is arguable that the principle of public interest immunity extends to documents prepared by government departments for submission to ministers as well as for submission to Cabinet.

Determining the validity of a claim

In determining a claim for immunity, the court must first identify the public interest that arises and whether there is a risk that disclosure would be injurious to that interest: Halsbury's Laws of Australia [195‑7530]. If disclosure would injure an identified public interest, the court must balance that public interest against the public interest in the administration of justice, which may be impaired by the denial of access to discoverable documents, to see which should prevail: Sankey v Whitlam (supra) at 38 – 39.
The plaintiff suggested that the court should privately inspect the documents as an aid to determining whether the claim is justified and where the balance should fall. The defendant concedes that the court has the power to do so. The Seventh Australian edition of Cross on Evidence says at [27165] that in the appropriate case such an inspection is a very useful procedure for the court to enable resolution of any doubts as to the legitimacy of the claim that the public interest is at risk and also to assist it with the balancing process. However, the author of Cross on Evidence observes that the power of the court to inspect is not to be exercised lightly or as a matter of course. In the case of a class claim, the court ought to inspect the documents in question only where it has definite grounds for expecting to find material of real importance to the parties seeking disclosure. It is "not appropriate for the judge to inspect as part of a fishing expedition on the part of the party seeking disclosure or on the off‑chance that the documents might contain something of value to that party": Cross on Evidence at [27165] citing Burmah Oil Co Ltd v Governor & Company of the Bank of England [1980] AC 1090; Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394; Alister v The Queen (1983) 154 CLR 404; Alister v The Queen (1984) 154 CLR 469; Beneficial Finance Corp Ltd v Australian Federal Police Commissioner (1991) 31 FCR 523 at 551‑2.
If the materials before the court suggest merely that the documents may contain relevant information, an attempt to gain access to the documents on the basis of such a hope is characterised as a fishing expedition: The Laws of Australia [16.7.138].

The statutory and public context

The defendant is a public authority established by the Public Transport Authority Act 2003 (WA) ("the PTA Act"). It is an agent of the State and has the status, immunities and privileges of the State. The Minister is responsible for the administration of the PTA Act. Section 25 of the PTA Act requires the defendant and the Minister, at the request of either, to consult together, either directly or through appropriate representatives, in relation to any aspect of the Authority's operations and requires the Authority to consult the Minister before it enters upon a course of action that in its opinion is likely to be of significant public interest. Section 26 of the PTA Act requires the defendant to keep the Minister reasonably informed of the operations, financial performance and financial position of the Authority, including the assets and liabilities, profits and losses, and prospects of the Authority and to give the Minister reports and information that the Minister requires for the making of informed assessments of those matters. Under s 27 of the PTA Act the Minister may give written directions to the Authority with respect to the performance of its functions either generally or in relation to a particular matter and the Authority is required to give effect to any such direction. Section 28 of the PTA Act entitles the Minister to have information in the possession of the Authority and to request that the Authority furnish information to the Minister.
The New Metro Rail City Project is the inner city component of works for the southern suburbs railway that will extend from Perth to Mandurah. Work began in February 2004 and is still continuing. The works constitute one of the largest, if not the largest, public transport projects undertaken in Western Australia. The present action is known as the "rise and fall dispute". The plaintiff estimates that the amount in issue between the parties may be in the order of $50 million. Mr Mann is the director of the project for the defendant. I will discuss the action in more detail at a later time.

The documents for which immunity is claimed

Mr Farrell deposes that he has inspected and considered each of the documents in respect of which the defendant claims public interest immunity ("the Privileged Documents"). Mr Farrell has identified each of the Privileged Documents in his affidavit. Mr Farrell deposes that the Privileged Documents constitute documents prepared for the purpose of briefing the Minister, the Treasurer or the Premier. Mr Farrell swears that in general, briefing notes to Ministers are confidential. The following summary of documents is derived from Mr Farrell's affidavit of 16 April 2007.

Document 1

Document 1 is a briefing note to the Minister from Mr Mann entitled "New Metrorail City Project – Rise & Fall Dispute" attaching extracts from the Project Deed. The document also contains a reference to legal advice received by the defendant in relation to the dispute. I leave to one side the fact that the document contains reference to legal advice. The defendant does not claim that the document is immune from disclosure because of the reference to legal advice. Counsel for the defendant foreshadowed that if the court orders the Privileged Documents to be disclosed then the defendant will cover up those parts of the documents that refer to legal advice that is properly the subject of client legal privilege.

The public interest in non‑disclosure

The briefing note from Mr Mann to the Minister is to be regarded in the same way as a communication between a head of a government agency or department and the responsible Minister. The subject matter of the communication is a briefing by Mr Mann on a current subject of public importance and public controversy, that is the New Metro Rail City Project component of the southern suburbs railway extension. The briefing note concerns the dispute between the defendant government authority and the contractor responsible for the delivery of the project. That is itself a matter of public controversy.
Two arguments that may be relevant when a claim is asserted that communications between heads of government agencies or departments and a Minister should not be disclosed, are that the immunity is necessary to encourage candour and that the immunity is necessary to discourage ill informed or captious criticism. I have already referred to these principles. In Sankey v Whitlam (supra) Mason J agreed with Lord Reid in Conway v Rimmer (supra) who suggested that the possibility that premature disclosure will result in want of candour in Cabinet discussions or in advice given by public servants is so slight that it may be ignored. On the other hand, Gibbs ACJ commented that whilst some Judges now find the candour argument unconvincing he did not regard it as altogether unreal to suppose that in some matters communications may be more frank and candid if there were no concern about possible exposure, but held that it could not justify a complete immunity from disclosure. In Commonwealth v Northern Land Council (supra) at 615, in a joint judgment the High Court said that the mere threat of disclosure is likely to be sufficient to impede Cabinet deliberations by muting a free and vigorous exchange of views or by encouraging lengthy discourse engaged in with an eye to subsequent public scrutiny. Their Honours stated that the disclosure of the deliberations of the body responsible for the creation of State policy is liable to subject the members of that body to criticism of a premature, ill‑informed or misdirected nature and to divert the process from its proper course.

The protection afforded by the doctrine is not intended to protect ministers and other servants of the State from criticism but rather to ensure the proper working of government. It is a matter of ensuring that policy and decision making is uninhibited.
The Privileged Documents are not Cabinet documents or documents disclosing Cabinet deliberations and their non‑disclosure does not attract the same public interest. However, they are high level government documents.
The circumstances in this case are unusual. The document in respect of which public interest immunity is claimed is a briefing note in which a senior officer within a government agency is briefing the Minister responsible for the agency and responsible for a major government infrastructure project about the litigation in the course of which this application is made. The briefing note relates to the litigation and to policies or decisions the Minister must make in relation to the litigation and the underlying dispute. Those matters are themselves the subject of current public controversy. The disclosure of the document would expose the Minister's decision‑making process, or a step in that process, when those matters are all still matters of current public attention or controversy.
The disclosure of document 1 would be injurious to the public interest. The briefing note would be open to be interpreted as revealing issues, options, policies or decisions which might be made or might have been considered by the Minister at a time when those matters are still current. That might create or fan ill informed or captious criticism.
The disclosure of the issues and options raised by, and the advice of, the project director would impede the Minister in carrying out her ministerial functions. Furthermore, the project director's briefings to the Minister about the dispute with the contractor may be more frank and candid if there is no concern about disclosure. That is because of the particular circumstances of this case where the briefing concerns a dispute that was at the time it was written both likely to lead to litigation and be a matter of public interest if not controversy, both of which matters have come to pass.

The public interest in disclosure

My finding that there is a public interest in the non‑disclosure of document 1 does not necessarily mean that the document should not be disclosed. It is necessary to balance that interest against the public interest in the proper administration of justice which calls for disclosure of relevant material.
The court must balance the claimed public interest against the public interest in the administration of justice, which may be impaired by the denial of access to discoverable documents. In balancing the competing interests in a claim for public interest privilege it is inappropriate to lay down any general principles: Sankey v Whitlam (supra) at 60 per Stephen J. An important factor is the relevance of the material and its likely influence on the outcome of the litigation: Australian National Airlines Commission v Commonwealth (1975) 132 CLR 582 per Mason J at 592 – 593.

The issues in this case

I have discussed the issues in this action in my reasons for decision in other interlocutory disputes in the course of this action. In short, the principal issue in this action is what index should be used in the rise and fall calculation (as to the relative cost of building materials and labour) in substitution for the Australian Bureau of Statistics' ("ABS") table 42 index. That gives rise to two further issues. The first is: what is the proper construction of Annexure G of the Project Deed, which provides for the substitution of an index? The second is: what index should be substituted having regard to the proper construction of Annexure G? The pleadings do not disclose that those issues involve the consideration of material extrinsic to the Project Deed other than the matters pleaded by the plaintiff in pars 17 – 19 of the statement of claim. The plaintiff alleges that the appropriate substitute index for the table 42 index is one that reflects future variations in the prevailing costs of labour and materials of the general character used in carrying out the contracted works. The defendant submits, and I accept, that whether indexation reflects future variations in the prevailing costs of labour and materials will depend upon the manner in which the index is constructed.
The plaintiff also alleges that whether an index reflects future variations in the prevailing costs of labour and materials may depend upon extrinsic evidence such as the nature and location of the contracted works, industry practice and overall movements in the five indexes which it has proposed. However, the defendant submits that even if the Court accepts this position, the plaintiff does not allege that the Court should itself determine what constitutes reasonable indexation, but seeks an order referring the matter to a court appointed referee. The plaintiff accepts that that is its position. Hence, the plaintiff has not pleaded a case which requires discovery of material relating to the extrinsic matters referred to in the statement of claim for the purpose of determining the matters for trial.
The plaintiff raised an additional matter, namely that it was directed to use table 48 of ABS catalogue 6427.0 as the replacement index by the defendant, but that this direction is not binding or, if it was binding, the making of a direction was a breach of an implied term by the defendant to act fairly and reasonably. However, I accept submissions previously made by the defendant that this is not an issue for trial because the defendant accepts that it only had the power to make a binding direction to the extent that table 48 of catalogue 6427.0 was, on a proper construction of the Project Deed, the correct index to substitute for table 42.
On 27 March 2007 the plaintiff further amended its statement of claim. In par 8A the plaintiff pleads an implied term of the Project Deed that any index to be substituted for table 42 must be commissioned, designed and constructed independently and without influence by one of the parties to the exclusion of the other. In par 16A(d) the plaintiff pleads that the "PTA index", that is the new table 48 index, was not a reasonable substitute materials index in that, in breach of an implied term, the commissioning, design and construction of the PTA index was not independent of and without influence by the PTA in that the PTA, together with the Commissioner for Main Roads, commissioned and paid the ABS to create the PTA index, the PTA participated in the design and construction of the PTA index, the PTA participated in the design and construction of the PTA index to the exclusion of the plaintiff, and the PTA influenced the methodology used to create the PTA index.

Unlikely document contains directly relevant material

Having regard to the issues for trial, it is unlikely that document 1 is, or contains material that is, directly relevant to any matter in question at trial. The defendant, however, accepts that each of the Privileged Documents is relevant for the purposes of discovery. The ambit of discovery under the Rules of the Supreme Court ("RSC") extends not only to documents that are directly relevant to any matter in question but also to documents that relate to any matter in question in the sense that they may fairly lead a party to a train of enquiry which may enable that party to advance its own case or to damage the case of its adversary.
Document 1 is dated 3 February 2006. That is a date after the date when the substitute index, table 48 of ABS Catalogue 6427.0, had been promulgated and after the dispute concerning it had arisen. The contents of the document are not directly relevant and are likely to be relevant only on the "train of enquiry" basis. The success or failure of the plaintiff's case at trial will depend in part on the proper construction of the Project Deed and in part on an objective assessment of which index should be substituted for the discontinued index having regard to the proper construction of the Project Deed. Evidence of communications to the Minister after the substituted index had been promulgated and the dispute had arisen cannot help those aspects of the plaintiff's case. The plaintiff also bases its case on an allegation that the defendant, with the Commissioner for Main Roads, participated in the design and construction of the substituted index to the exclusion of the plaintiff and influenced the methodology used to create the substitute index. The documents directly relevant to that issue are communications and documents recording communications between the defendant and the Commissioner and the ABS. A briefing note by Mr Mann to the Minister after the substitute index had been promulgated and after the dispute had arisen is not directly relevant. In short, the Privileged Documents are not directly relevant to any issue in the proceedings.
Having regard to the considerations that disclosure may impede the Minister in carrying out her ministerial functions and that those with a duty to advise the Minister freely in relation to policy and decision making may be inhibited, I find that the public interest in non‑disclosure of document 1 outweighs the public interest in its disclosure.

The other privileged documents

Document 2 is a briefing note to the Minister from Mr Mann concerning the New Metro Rail City Project – Rise and Fall Dispute dated 3 February 2006. My consideration of the competing public interests in the disclosure and non‑disclosure of document 1 applies to the non‑disclosure of document 2. I find that the public interest in the non‑disclosure of document 2 outweighs the public interest in its disclosure.
Document 3 is an internal memorandum to the Minister from Katerina Businoska of the office of the Minister entitled "New MetroRail City Project ‑ Rise and Fall Dispute" and attaching printouts of websites dated 9 February 2006. A memorandum merely attaching printouts of websites would not attract public interest immunity. However, Mr Farrell deposes that the document relates to the Minister obtaining an independent report concerning the index to be applied following the discontinuance of the table 42 index and says that the resulting independent report has been discovered in these proceedings. I find that there is a public interest in the document not being disclosed for the reasons I have given in relation to document 1. Document 3 is unlikely to contain any material that is directly relevant to any matter in question at trial. Having regard to the issues in the action and the fact that the resulting independent report has been discovered I find that the public interest in the non‑disclosure of document 3 outweighs the public interest in its disclosure.
Document 4 is an email from Mr Mann to Katerina Businoska attaching an email from Katerina Businoska to Mr Mann dated 9 February 2006. The document relates to the Minister obtaining an independent report concerning the index to be applied following the discontinuance of the table 42 index. My consideration of the competing public interests in the non‑disclosure and disclosure of document 3 applies to document 4. The public interest in the non‑disclosure of document 4 outweighs the public interest in its disclosure.
Document 5 is an internal memorandum to the Minister from Katerina Businoska entitled "New MetroRail City Project – Rise and Fall Dispute" attaching a table entitled "Independent Consulting Firms that can undertake this task", an email and a briefing note, dated 10 February 2006. Mr Farrell says that the document relates to the Minister obtaining the independent report I have previously referred to. If the memorandum did no more than attach the table listing independent consulting firms that can undertake the required task there would be no relevant public interest in its non‑disclosure. However, the document contains a briefing concerning obtaining the independent report. The same considerations apply to this document as my consideration of the competing public interests in the non‑disclosure and disclosure of documents 3 and 4. The public interest in non‑disclosure of document 5 outweighs the public interest in its disclosure.
Document 6 is a copy of emails between Mr Mann and Katerina Businoska with handwritten annotations dated 8 – 10 February 2006. It relates to the Minister obtaining the independent report I have previously referred to. The same considerations apply to this document as my consideration of the competing public interests in the non‑disclosure and the disclosure of document 3. The public interest in the non‑disclosure of document 6 outweighs the public interest in its disclosure.
Document 7 is an internal memorandum to the Minister from Katerina Businoska entitled "New MetroRail City Project – Independent Advice on Indexes" attaching a table entitled "Summary: Quotes and additional Information" and proposals dated 15 February 2006. The document relates to the Minister obtaining the independent report I have previously referred to. The matters I referred to in considering the competing public interests in the non‑disclosure and disclosure of document 3 apply also to this document. The public interest in the non‑disclosure of document 7 outweighs the public interest in its disclosure.
Document 8 is an internal memorandum to the Minister from Katerina Businoska entitled "New MetroRail City Project – Access Economics advice on construction sector indexes" with handwritten annotations, attaching printout entitled "State Infrastructure Strategy" dated 2 March 2006. The document relates to the Minister obtaining the independent report I have previously referred to and contains references to government policy concerning the establishment of certain working groups. The matters I have referred to in considering the competing public interests in the non‑disclosure and the disclosure of document 3 apply to document 8. Furthermore, the references to matters of government policy in the document strengthen the case for non‑disclosure. The public interest in non‑disclosure of document 8 outweighs the public interest in its disclosure.
Document 9 is a briefing note entitled "Notes on DTF Comments – NMR Budget 'Costs Pressures'" which is undated and authored by Mr Mann. The document contains Mr Mann's notes for the Minister and chief executive officer of the defendant in response to comments made by the Department of Treasury and Finance in relation to the defendant's 2003 Cabinet submission on the New Metro Rail budget. This document contains briefing notes for the Minister and the Authority's chief executive officer in relation to Cabinet matters. There is a public interest in its non‑disclosure. Having regard to the matters in issue at the trial of this action, it is not likely that the document will contain any matter directly relevant to any matter in question at trial and is likely to contain material discoverable only on the "train of enquiry" basis. The public interest in non‑disclosure outweighs the public interest in disclosure of the document.
Documents 10, 11 and 12 are each described by Mr Farrell as a briefing note to the Premier entitled "Southern Suburbs Rail (SSR) Project – Cost Claims by Leighton Kumagai Joint Venture (LKJV) and West Australian Newspaper Reporting into those Claims" which is undated, but refers to a report in The West Australian newspaper dated 28 January 2006. Each document includes the discussion of disputes between the plaintiff and the defendant other than the dispute the subject of these proceedings. Each document also contains a reference to legal advice received by the defendant in relation to the dispute. For the reasons given earlier, I do not have regard to the fact that the documents contain references to legal advice. I find that there is a public interest in the non‑disclosure of a note of advice to the Premier concerning disputes with the contractor responsible for the delivery of a major government infrastructure project and that that public interest outweighs any public interest in the disclosure of the document. That is because the document is not directly relevant to any matter in question at trial. The public interest in non‑disclosure of each of these documents outweighs the public interest in their disclosure.

Inspection – Conclusion

I have found that there is a public interest in the non‑disclosure of each of the Privileged Documents. The documents are high level government documents in that they are documents prepared for the purpose of briefing the Minister, the Treasury or the Premier in relation to disputes with the contractor responsible for the delivery of a major government infrastructure project that is the subject of public interest and public reporting. The subject matter of those notes is still current. The infrastructure project has not been completed and the disputes are the subject of this litigation. The documents are not Cabinet documents or, with the exception of document 9, documents in relation to Cabinet deliberations. The exercise of balancing the public interest in non‑disclosure against the public interest in disclosure might well favour disclosure of the documents if the disclosure of the documents to the plaintiff were necessary for the fair disposal of the matters in issue in this action. However, the Privileged Documents are not directly relevant to any matter in question at trial and it is unlikely that the disclosure of any of the Privileged Documents would significantly advance the plaintiff's case. The disclosure of the Privileged Documents is not necessary for the fair disposal of the matters in issue in this action.
The Court may inspect documents to carry out the balancing or weighing function to which I have referred. That power may arise from RSC, O 26 r 12 or from the court's inherent jurisdiction: CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; 22 WAR 48 per the Full Court at [15]. In CTC Resources NL v Australian Stock Exchange Ltd the Full Court stated at [30] its opinion that:
"… the position in Western Australia, at least in relation to public interest immunity based on the contents of documents, is as follows. The discretion conferred by O 26, r 12(2) to carry out a private inspection of documents in the course of an application for production under O 26, r 12(1) is of the broadest kind. Before the discretion is enlivened, the court must be satisfied that the documents are relevant to matters in issue. Beyond that it is not necessary, and nor would it be desirable, to attempt a definition of a threshold test. However, in exercising the discretion the judicial officer must not lose sight of the fact that the power to inspect exists for the purpose of deciding whether the claim of privilege is 'unfounded or mistaken'. In a case where the documents are prima facie immune from compulsory disclosure but are relevant to matters in issue in the litigation the court must go on to conduct the balancing exercise described in the authorities. The discretion, while a broad one, must be exercised judicially. There should be something in the circumstances of the case which excites the attention of the court to the view that the process of determining the challenge to the immunity claim will be aided by inspection."
In this case, there is nothing which excites the attention of the court to the view that the process of determining the challenge to the immunity claim will be aided by inspection. The date of the documents, their nature and the description of their contents leads to the conclusion that there is nothing in the documents that is directly relevant to any issue in the proceedings or would materially assist the plaintiff's case.
Furthermore, the trial Court should be slow to exercise its discretion to inspect the documents where, if the claim for privilege is upheld, the trial Court will have seen privileged information which is not evidence in the proceedings. In all the circumstances, I decline to exercise my discretion to inspect the documents before determining the claim for public interest immunity.

For the reasons stated, I dismiss the plaintiff's application to inspect the Privileged Documents.

Application for further and better discovery

I have set out earlier in these reasons a brief summary of the issues in this action, including the matters raised by the plaintiff in its amendments to the statement of claim effected on 27 March 2007.
In describing the amendments to the statement of claim, senior counsel for the plaintiff said that those amendments raise issues as to the extent to which the substitute index, table 48, was directed by officers of the defendant, particularly Mr Mann. In correspondence with the defendant's solicitors the plaintiff's solicitors sought discovery of documents relating to the defendant's reasons, motivations and deliberations in relation to its communications with the ABS. Senior counsel submitted that although the word "motivation" has been used, the case raised by the amended pleadings is about the direction of the design and construction and the influencing of the methodology in relation to the substitute index.
In its chamber summons the plaintiff seeks further and better discovery of five documents, or classes of documents. The first is: "Documents which refer to project contingencies in respect of rise and fall on Package F of the New Metrorail City Project (including but not limited to those documents identified below)". The documents there identified are four documents or groups of documents which are all said to refer to project contingencies in respect of rise and fall. In the course of argument senior counsel for the plaintiff further narrowed the documents of which further and better discovery was sought by adding to the description the words "insofar as they refer to the defendant's reasons, motivations and deliberations in relation to its communications with ABS".
As the argument before me unfolded it appeared that the real issue between the parties is whether or not the defendant has discovered documents which refer to project contingencies with respect to rise and fall insofar as they refer to the defendant's reasons, motivations and deliberations in relation to its communications with the ABS. Senior counsel for the plaintiff submitted, in effect, that the defendant has excluded from the documents it has discovered any documents which refer to project contingencies in respect of rise and fall whether or not they refer to the defendant's reasons, motivations and deliberations in relation to its communications with the ABS. Counsel for the defendant submitted that the defendant has given discovery of documents that refer to its reasons, motivations and deliberations in relation to its communications with the ABS including documents which refer to those matters in the context of project contingencies in respect of rise and fall but the defendant has not given discovery of documents which refer to project contingencies but are not relevant on any other basis. The argument arises from statements by the defendant's solicitor and communications between the solicitors.
Nicholas Egan is the solicitor who has the conduct of these proceedings on behalf of the defendant. In his affidavit sworn 16 April 2007 Mr Egan said:
"All relevant documentation and correspondence relating to discussions between the Defendant and the ABS has been discovered (leaving to one side the issue of deleted emails, which is discussed in further detail below)."
Mr Egan then went on to describe "project contingencies" as those contingencies which affect the monies to be allocated by government for payment to contractors to enable the delivery of a project. Mr Egan swears that as far as references in documents to contingencies for rise and fall are concerned, those references relate to the amount which the defendant and government needed to allocate for payment of rise and fall to the plaintiff. In par 9 of his affidavit Mr Egan swears that in providing discovery, the defendant did not exclude any documents from discovery on the basis that they referred only to a project contingency for rise and fall. Mr Egan swears:
"If a document did contain a reference to a contingency for rise and fall, it has been discovered, subject to issues of privilege (although other parts of the document may have been masked for relevance). However, documentation relating to project contingencies was not a category of documents that was searched for specifically, by reason of the fact that there was no issue on the pleadings that would give rise to an inference that the documentation was relevant."
At the hearing of this application, counsel for the plaintiff tendered a letter of 17 April 2007 from Mr Egan to the plaintiff's solicitors. In that letter Mr Egan wrote:
"I refer to your letter dated 16 April 2007 in relation to discovery of documents concerning the PTA's reasons, motivations and deliberations in relation to its communications with ABS. I again confirm that any documents relating to the PTA's reasons, motivations and deliberations in relation to its communications with ABS that have been uncovered by searches so far have been discovered, and that any such documents in the deleted and recovered emails will also be discovered. I reiterate that this does not extend to documents which relate solely to project contingencies (which of course is what the Plaintiff's Chamber Summons is directed towards)."
If Mr Egan had not added the last sentence to his letter then what he is saying in the letter would be quite clear. The defendant has given discovery of any documents relating to the defendant's reasons, motivations and deliberations in relation to its communications with ABS except for such documents in the deleted and recovery emails which are the subject of separate consideration. Senior counsel for the plaintiff submitted that the final sentence of the letter qualifies that statement and means that the defendant has not given discovery of any documents which relate to project contingencies, even if they refer to the defendant's reasons, motivations and deliberations in relation to its communications with ABS. Counsel for the defendant submitted that is not the meaning of the last sentence of Mr Egan's letter. Mr Egan's reference to "project contingencies" means all project contingencies, not just project contingencies relating to rise and fall. Furthermore, Mr Egan says in his letter only that the defendant has not given discovery of documents which relate solely to project contingencies but does not say, and does not mean, that the defendant has not given discovery of documents which relate to project contingencies for rise and fall even if they refer to the defendant's reasons, motivations and deliberations in relation to its communications with ABS.
On the face of it, the defendant's affidavit of discovery is conclusive. Before the Court will make an order for further and better discovery, or for discovery of specific documents, it must have reasonable grounds for being fairly certain that there is or has been in the possession or power of the defendant, a document relating to matters in question in the action that has not been discovered. I am not satisfied that the defendant has in its possession, custody or power a document which refers to project contingencies in respect of rise and fall on Package F of the New Metro Rail City Project and refers to the defendant's reasons, motivations and deliberations in relation to its communications with the ABS, which the defendant has not discovered, except for documents in the deleted emails which are to be considered separately.
I turn to consider the documents numbered 2, 3, 4 and 5 in the plaintiff's schedule of documents of which it seeks further and better discovery. Document 2(c) is an electronic copy of the excel spreadsheet referred to in attachment 3 to a document described as the Willox submission. The defendant has given discovery of a paper copy of the spreadsheet. The plaintiff wants discovery of an electronic copy. Senior counsel for the plaintiff and counsel for the defendant agreed that the parties should confer about that matter. I will defer my consideration of that issue until the parties have exhausted their conferral.
Document 3 is any notes or briefing documents referred to by Mr Waldock before or during the New MetroRail Steering Committee Meeting number 46 to report to the Committee on rise and fall on the response from the ABS to submissions to retain the materials index. Senior counsel for the plaintiff submitted that on its face this is a document that refers to something which is squarely relevant. I am informed that the minutes or notes of New MetroRail Steering Committee Meeting number 46 have been discovered and disclose that Mr Waldock reported to the committee on rise and fall "on the response from the ABS to submission to retain the materials index". I am not satisfied that those matters establish that any notes or briefing documents referred to by Mr Waldock before or during the committee meeting and which have not been discovered by the defendant are relevant to any matter in issue. The mere description of notes or briefing documents as being ones referred to by Mr Waldock before or during a meeting to report to the committee on the response from the ABS to submission to retain the materials index does not overcome the prima facie conclusiveness of the defendant's affidavit of discovery.
I have considered the remainder of the documents, or classes of documents, of which the plaintiff seeks further and better discovery. I am not satisfied that the plaintiff has established that the defendant has, or has had, in its possession, custody or power documents falling within those descriptions and which are relevant to any matter in issue in these proceedings. The plaintiff has not produced evidence to overcome the prima facie conclusiveness of the defendant's affidavit of discovery, combined with the sworn affidavit of Mr Egan and Mr Egan's letter of 17 April 2007. These documents effectively state that any documents containing a reference to a contingency for rise and fall have already been discovered (subject to issues of privilege) and that any documents relating to the defendant's reasons, motivations and deliberations in relation to its communications with the ABS have been discovered (except for such documents in the deleted emails).

Further and better discovery – Conclusion

I will dismiss the plaintiff's application except insofar as the plaintiff seeks discovery of an electronic copy of the excel spreadsheet referred to in attachment 3 to the Willox submission. That matter will be adjourned pending conferral between the parties.