Marinis v Prendergast
[2015] WASC 69
•24 FEBRUARY 2015
MARINIS -v- PRENDERGAST [2015] WASC 69
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 69 | |
| 24/02/2015 | |||
| Case No: | CIV:1290/2014 | 19 JANUARY 2015 | |
| Coram: | MASTER SANDERSON | 19/01/15 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Inspection ordered | ||
| B | |||
| PDF Version |
| Parties: | JIM MARINIS IAN PRENDERGAST AUSTRALIAN FOOTBALL LEAGUE PLAYERS ASSOCIATION (INC) |
Catchwords: | Practice and procedure Application for inspection of discovered documents over which privilege claimed 'Public Interest Privilege' Turns on own facts |
Legislation: | Nil |
Case References: | Finch v Grieve (1991) 22 NSWLR 578 Royal Women's Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22 Sankey v Whitlam (1978) 142 CLR 1 The Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34; (2008) 36 WAR 83 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
IAN PRENDERGAST
First Defendant
AUSTRALIAN FOOTBALL LEAGUE PLAYERS ASSOCIATION (INC)
Second Defendant
Catchwords:
Practice and procedure - Application for inspection of discovered documents over which privilege claimed - 'Public Interest Privilege' - Turns on own facts
Legislation:
Nil
Result:
Inspection ordered
Category: B
Representation:
Counsel:
Plaintiff : Mr J McLaurin
First Defendant : Ms L G Rafferty
Second Defendant : Ms L G Rafferty
Solicitors:
Plaintiff : TGC Lawyers
First Defendant : Gilchrist Connell
Second Defendant : Gilchrist Connell
Case(s) referred to in judgment(s):
Finch v Grieve (1991) 22 NSWLR 578
Royal Women's Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22
Sankey v Whitlam (1978) 142 CLR 1
The Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34; (2008) 36 WAR 83
1 MASTER SANDERSON: By originating motion filed 27 February 2014 the plaintiff sought pre-action discovery against the defendants. The matter was resolved between the parties without a hearing by way of consent orders initialled by me on 6 November 2014. In summary the orders required the defendants to give discovery of certain specified documents by 24 November 2014.
2 An affidavit of discovery was duly provided on 24 November 2014. In that affidavit privilege was claimed over three documents. The basis of the claim was public interest privilege; or as it is more properly known a claim for public interest immunity. After hearing argument I ordered inspection of the three documents. I indicated I would publish reasons for my decision. These are those reasons.
3 For the purposes of determining this application only a brief summary of the facts is required. The second defendant is a body representing those persons who play in the Australian Football League. As part of its services to players it licences player's agents. To obtain a licence a candidate must attend a course and sit an exam. The plaintiff did just that. However he failed the exam and was consequently denied a licence. He believes he may have a cause of action against the second defendant and it was for that reason he sought pre-action discovery. The first defendant is the President of the second defendant and had no interest in the proceedings independent of the second defendant.
4 The affidavit of discovery was sworn by Brett Francis Murphy. The documents the subject of the application are documents numbered 9, 10 and 28. They are described in attachment A as follows:
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5 The claim for privilege of each of these documents is set out in some detail. I will quote what is in the affidavit:
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• The examination paper continues to form the basis of examinations for persons seeking accreditation as agents of AFL players. • The release of the content of the examination paper has the potential to taint the integrity of future examinations. |
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• The examination paper continues to form the basis of examinations for persons seeking accreditation as agents of AFL players. • The release of the content of the examination paper has the potential to taint the integrity of future examinations; and • The applicant is aware of the content of the examination paper. |
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• The examination paper continues to form the basis of examinations for persons seeking accreditation as agents of AFL players. • The release of the content of the examination paper has the potential to taint the integrity of future examinations; and • The applicant is aware of the content of the examination paper. |
6 Although there is a slightly different formulation of the reasons why privilege is claimed in relation to document 9, as against the formulation of the claim for documents 10 and 28, in reality the same point is being made. Accordingly the same principles apply in determining the application in relation to all three documents. Thus if one of those documents is available for inspection they all must be available for inspection; and the reverse is true.
7 Before considering the nature of a claim for public interest immunity it is as well to make two points. First, any documents discovered in court proceedings are subject to an implied undertaking as to confidentiality. Submissions made on behalf of the plaintiff make it plain the plaintiff is aware this is the case. Second, the plaintiff has offered to enter into a confidentiality agreement which by its terms further protects the integrity of the documents. So whatever the outcome of this application the defendants had a measure of protection and the documents were not likely to be freely available to the general public.
8 In Sankey v Whitlam (1978) 142 CLR 1, Stephen J defined 'Crown privilege' or public interest immunity as follows:
Because disclosure to the world at large of some information concerning sensitive areas of government and administration may prejudice the national interest there exists a public interest in preventing the curial process from being made the means of any such disclosure. At the same time the proper administration of justice, of prime importance in the national interest, requires that evidence necessary if justice is to be done should be freely available to those who litigate in our courts (48 - 49).
9 As the description of the privilege suggests, and as was accepted by the defendants, generally the privilege attaches to departments or organs of central government. But that is not necessarily so. However, a claim must relate to a State interest such that the disclosure would thereby be injurious to the 'public interest'. Thus it is regulatory bodies, or those concerned with statutory functions and the like, where there is some governmental character present, can lay claim to the privilege.
10 This was the first basis upon which the plaintiff disputed the defendants' claim to privilege. The plaintiff said there was no governmental or regulatory function performed by the second defendant and it was simply not open to it to claim the privilege. The plaintiff submitted the defendants were misusing the phrase 'public interest'. There may well be a public interest served by the licencing of agents to represent AFL players. But this was a decision made by the players though the agency of their association. It was not mandated by the government and was not part of any government regime.
11 In response to this submission counsel for the defendants referred, in particular, to the decision of Wood J in Finch v Grieve (1991) 22 NSWLR 578. The facts in that case as set out in the headnote were as follows:
In proceedings in the Administrative Law Division, in which a barrister challenged the validity of a referral of alleged misconduct on his part to the Legal Profession Disciplinary Tribunal by the Bar Council under the Legal Profession Act 1987, the barrister sought production of material giving rise to the allegation of misconduct against him.
12 The Bar Council claimed the documents were protected by public interest immunity. If the Bar Council itself was the prosecuting authority - that is to say, if the Bar Council was charged with responsibility for hearing the case against the plaintiff and imposing a penalty under the Legal Profession Act 1987 (Vic) - then it is not difficult to see how a claim for privilege could be made out. But it was the role of the Bar Council to decide whether the plaintiff should be referred to the Legal Profession Disciplinary Tribunal which would in turn conduct any prosecution.
13 Nonetheless Wood J determined privilege did attach. After an extensive review of the authorities, particularly the English authorities, his Honour said:
It is clear from the authorities previously cited that claims to public interest immunity are not to be narrowly confined to departments or organs of central government. In appropriate cases, I am of the view that the Bar Council is entitled to make such a claim. However, where it does take that course, then it requires the balancing exercise referred to in the authorities ... . That involves weighing the detriment to the public interest involved in disclosure, against the detriment to the public interest in non-disclosure (595 - 596).
14 Oddly enough when canvassing the authorities his Honour did not mention Sankey v Whitlam, despite the fact Sankeywas decided some 12 years before Finch. But nonetheless it must be accepted the formulation of the test by Wood J at least gives the defendants in this case some comfort. The plaintiff in turn relied upon the decision of the Victorian Court of Appeal in Royal Women's Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22. That case squarely raised the scope of public interest immunity. Each of the three judges on the court formulated the test on a different basis. Charles JA put the position this way:
Having regard to the authorities previously discussed, in my view public interest immunity is restricted to what must be kept secret for the protection of government at the highest levels and in sensitive areas of executive responsibility, governmental function in this context being defined to include the courts and bodies exercising statutory duties and functions in circumstances analogous to the police informer immunity [116].
15 That formulation of the position was accepted by the Court of Appeal in this State in The Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34; (2008) 36 WAR 83. That being the case there is no basis upon which the defendants in this case could claim public interest immunity. They are not in any way, shape or form part of the government or even quasi government. They do not exercise a regulatory function pursuant to some delegated authority, still less do they have statutory rights to regulate player agents.
16 For these reasons I ordered the plaintiff should be entitled to inspect the three documents in question. The plaintiff offered a confidentiality regime to further protect the defendants and although, strictly speaking, I do not think that is necessary it may in the circumstances of this case be appropriate. The defendants should pay the plaintiff's costs of this application including the reserve costs.
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