Meekins v the State of South Australia No. Scgrg-97-203

MEEKINS V STATE OF SOUTH AUSTRALIA

[2000] SASC 317

1................ JUDGE BURLEY......... In this matter the plaintiff claims damages from the defendant for alleged breach at common law, statutory and fiduciary duties. According to the statement of claim, when the plaintiff was eight months old, he was committed to the care of the Social Welfare Department until he reached the age of 18. The plaintiff alleges that whilst he was a ward of the State he was placed in various institutions and with various foster parents between 1966 and 1980. In broad terms the plaintiff alleges that the relevant department or Minister did not act in his best interests and was in breach of various duties in relation to the care of the plaintiff such that he sustained injury and suffered loss and damage.

The defendant has given discovery and in respect of certain documents has claimed that it is not obliged to produce the documentation to the plaintiff on the ground of public interest immunity. In addition, in respect of certain adoption files maintained by relevant government departments, which have been discovered by the defendant, the defendant claims that by virtue of the provisions of the relevant adoption Acts, it is not obliged to produce that documentation to the plaintiff. The plaintiff has applied for orders for production of all of the documentation which the defendant maintains it is not obliged to produce.

Public Interest Immunity - The Law

In Adelaide Brighton Cement v State of South Australia and Anor (1999) 75 SASR 209, Debelle J considered the application of public interest immunity in relation to Cabinet documents. In that case the plaintiff had, for a number of years, paid wharfage and tonnage fees to the Harbors Board or Ports Corporation in respect of wharf facilities at Klein Point and Birkenhead. In the action the plaintiff alleged that the charges, which were imposed by regulation, were duties of excise within the meaning of Section 90 of the Commonwealth Constitution and were therefore invalid.
Discovery was given by the parties and the defendant claimed privilege from production on the basis of public interest immunity in respect of the following four classes of documents:
1...... Submissions to Cabinet by Ministers of the Crown.
2...... Submissions to Cabinet by the Under-Treasurer.
3...... Attachments to Cabinet submissions; and
4...... One document entitled “Discussion of Cabinet Deliberations”.
It was contended by the Crown that the documents were of a class which should not be disclosed. There was no claim for privilege on the ground that the content of any document required that it not be produced for inspection.
Adverting to this Debelle J said (at 211):
“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 [1980] AC 1090 at 1111 per Lord Wilberforce; Commonwealth v Northern Land Council (1993) 176 CLR 604 at 616. This is a class claim.”
Like the case at bar, the case before Debelle J involved discovery of documents by a party in respect of which immunity from production was claimed. Because discovery was given, it could be concluded that the documents were material to the issues in dispute in the action. The same conclusion may be made in this case.
Having referred to the authorities, Debelle J said (at 212):
“Since at least the decision in Sankey v Whitlam [(1978) 142 CLR 1], there is no absolute immunity from production and inspection of Cabinet documents as a class.”
In the course of setting out the principles applicable to a claim of public interest immunity, his Honour said (at 213):
“(6).. Those who urge privilege on the ground of public interest immunity for classes of documents, regardless of particular contents, carry a heavy burden: Sankey v Whitlam at 62 per Stephen J; see also Lord Reid in Rogers v Home Secretary [1973] AC 388 at 400. Speaking generally, a claim of public interest immunity for a class of documents will be upheld only if it is really necessary in the public interest or for the proper functioning of the public service to withhold the documents from production: Sankey v Whitlam at 39.”
The case also involves a detailed examination of the question of inspection of the documents by the Court: see paragraphs 9 and 10 at pages 214 to 216. It is generally desirable for the Court to inspect the documents because assistance will be derived when considering the competing policies of the Court having the best available evidence before it as opposed to the requirement that confidentiality be preserved in relation to certain government functions.
The other reason for inspecting the documents is to assist with the process of determining whether the documents come within the class contended for by the party claiming the immunity.
It seems to me that where the claim is based on the class of documents, if the Court concludes that as a matter of law the class of documents the subject of the application is not entitled to the immunity, there is no need to inspect the documents in order to identify them as coming within the relevant class because the legal conclusion is reached on the assumption that the documents the subject of the application do come within the particular class contended for.
In The Queen v Young (1999) 107 ACrimR 1, the New South Wales Court of Appeal (consisting of five judges) considered the claim of public interest immunity. The leading judgment was delivered by Spigelman CJ. The other members of the Court (apart from Beazley JA) agreed with the Chief Justice’s analysis of the cases. His Honour drew the distinction between a claim for public interest immunity and a claim for privilege. It was necessary to do so in that case and it is similarly necessary in this case. The defendant has not argued that the Court should create a new form of privilege in respect of communications between departmental officers responsible for the welfare of children and those with whom they deal (or at least some of those with whom they deal). The defendant could hardly do so because it is not open to a court at first instance to create a new category of privilege: R v Young at para [84].

The Factual Basis for the Claim for Immunity

This is to be found in the affidavit of Mr Procter of 13 April 2000. He is the general manager at Family and Youth Services, which is part of the Department of Human Services. He purports to swear the affidavit on behalf of the Minister for Human Services. I doubt whether the affidavit of Mr Procter is sufficient. It is clear from what was said by Debelle J in Adelaide Brighton Cement that the Minister should swear an affidavit in support of the claim for public interest immunity. That is not to say that only the Minister may swear the appropriate affidavit. As Debelle J recognised, it may be often appropriate for a departmental officer with the appropriate knowledge and expertise to supplement the Minister’s affidavit. However, no point was taken by the plaintiff as to the absence of an affidavit from the Minister. It is therefore necessary to examine Mr Procter’s affidavit with a view to ascertaining the factual substance behind the claim. In paragraph 3 of his affidavit he says: “[the] documents for which public interest immunity is claimed are contained in the files of children who are under the guardianship of the Minister during the time that the plaintiff was in departmental care. The last two sets of documents are contained in adoption files which are also held by the department”.
Paragraph 4 of his affidavit is as follows:
“4..... In the course of their duties, Departmental staff have at all relevant times carried out a range of case management functions including case work where children are placed under the Guardianship of the Minister and have always conducted their work in a confidential manner. To perform their duties accurately, efficiently and effectively over the years, considerable effort has been devoted to improving the case recording practices within the Department. Departmental social workers of Family and Youth Services and other professionals are required to record a range of personal and family circumstances that are private and sensitive. It is not appropriate for such records to be kept with an eye to whether or not they may later be available for public scrutiny. If such confidential information was available to third parties then there is a risk that Departmental social workers and other professionals would significantly curtail their recording of information and be much more circumspect. This would in turn impinge upon not only their own but the Department’s ability to case manage and to discharge its statutory responsibilities.”
Paragraph 4 relates to the importance of an accurate record being kept of the investigations of departmental officers and their dealings with the child and the child’s family. That is an obvious governmental function. The paragraph also deals with the risk that disclosure of the relevant documentation may affect governmental function. I cannot accept that departmental social workers and other professionals would significantly curtail their recording of information and be much more circumspect. The duties that they have under the Children’s Protection Act 1993, as referred to in paragraph 5 of Mr Procter’s affidavit, are imposed upon departmental officers irrespective of whether or not documentation is to be disclosed to third parties for the purposes of being used in court proceedings. It seems to me that Mr Procter does not take sufficient account of the fact that the documents are to be disclosed for use in court proceedings. It is not a disclosure to all and sundry. It is in fact a disclosure which is supervised by the court.
Paragraph 5 of Mr Procter’s affidavit is as follows:
“The Childrens Protection Act 1993 specifies the principles to be observed in dealing with children. These principles provide a significant framework for Departmental staff in their decision making associated with ensuring that the appropriate protection and stability of children is maximised. Considerable effort is devoted to working with parents and relatives and children to enable them to remain together as a family unit. Again, the discussions that occur between Departmental staff and family members do so in a confidential setting. It is considered that if a third party had the right to access this information that Departmental staff would not attain the same degree of co-operation from natural parents and other family members who want their discussions to remain private and confidential. Therefore if this information was able to be disclosed to other third parties, the Department’s ability to implement government policy and ensure the protection of children would be jeopardised.”
I accept that the dealings departmental officers have with parents and relatives of the children in the care of the Minister are of a confidential nature. But, for the same reasons given in relation to paragraph 4 of Mr Procter’s affidavit, I do not accept that the limited disclosure that may occur on rare occasions in relation to documentation that would otherwise not be disclosed, constitutes an inhibition of the magnitude asserted by Mr Procter in paragraph 5 of his affidavit.
I turn to a consideration of paragraphs 6, 8 and 9 of Mr Procter’s affidavit. They are as follows:
“6..... One female child whose file is within the ‘class’ sought to be covered by the privilege is intellectually disabled and as a result incapable of understanding the ramifications of the current situation. The release of her records, it is submitted, would not be in the public interest as it would not be consistent with protecting her interests.
...
8...... It is the Department’s submission that if the information under discussion was available to third parties, children under the guardianship of the Minister would be discriminated against in comparison to children who are not. Children in ordinary family situations do not have their conversations or day to day activities recorded in the same manner as children under the guardianship of the Minister. For details to be disclosed to third parties when they become adults in later life could be extremely damaging to them.
9...... Children under the guardianship of the Minister are placed in a variety of care situations and will talk to significant others (e.g. foster parents, Departmental staff, other professionals) about a range of private and sensitive activities. Due to their age they are unable to make decisions about what information they will or will not disclose.”
None of the matters deposed to therein, even if correct, constitutes a basis supporting the claim for public interest immunity. It is clear from R v Young, the court has to resolve a conflict between a policy that departmental dealings remain confidential to the department only and the policy that all available relevant evidence should be before the court in deciding matters before it. Essential to that resolution is consideration of whether or not governmental function is unduly interfered with by the requirement that documents be disclosed pursuant to a court order. The matters raised in paragraphs 8 and 9 of Mr Procter’s affidavit say nothing about inappropriate interference with proper governmental function.
Paragraph 6 of the affidavit is a clear indication that Mr Procter labours under a misapprehension as to the nature of public interest immunity. He refers to the fact that one of the files is in relation to a female child who is intellectually disabled. He asserts that it would not be in the public interest for the file to be disclosed. The assertion, however correct, overlooks the fact that public interest immunity is not merely a question of deciding whether or not something might be said to be in the public interest. It is confined to a question of resolving a conflict in different public interests.
Paragraph 7 is as follows:-
“7..... It is submitted that it is in the public interest for families to be kept together wherever possible, and that the role of Departmental staff is not impeded by the possible disclosure of information on the child, his/her parents and other relatives to a third party.”
Mr Procter asserts that it is in the public interest for families to be kept together wherever possible, a proposition with which few would disagree. He then states that departmental staff should not be impeded in achieving that object by the possible disclosure of information relating to the child and the child’s family to a third party. The assertion is so general that it lacks any force. There is a theoretical possibility that the disclosure of the documentation may interfere with the legitimate purposes pursued by the department but without more specificity it remains a theoretical possibility in the circumstances of this case.
Paragraph 10 of Mr Procter’s affidavit is as follows:
“Frequently with regard to children under the guardianship of the Minister placed in foster care, substantial personal details about the prospective and actual foster parents are recorded by Departmental staff. If these details were to become public it could adversely affect the willingness of families in the community to become foster parents, or of existing foster parents to continue fostering. Considering that there are approximately 1,200 children in foster care, this is a significant issue, particularly as it is becoming increasingly difficult to recruit foster parents, particularly for teenage children.”
The statements made in all but the first sentence of paragraph 10 are too general to be relied upon. There are no facts advanced to show how and the extent to which people might be deterred from volunteering as foster parents. Deterrence is referred to in the context of a statement that the information is to be made available to the public whereas the reality is that, as a matter of principle, the disclosure is only to be made in relation to legal proceedings under the supervision of the court.
It follows from the fact that the defendant has discovered the subject documentation that it is material to the matters in question in this action. In that context, the affidavit of Mr Procter falls far short of satisfying me that the public interest immunity claim should be sustained. That is particularly so in a case where the claim is made in respect of a class of documents as opposed to a claim based on the content of the documentation. As was said by Debelle J in Adelaide Brighton Cement, a party who claims public interest immunity in respect of classes of documents “carry a heavy burden” (at 213). This is also evident from the judgment of Cox J in Legal Services Commission v Trotter (1990) 54 SASR 74 at 82 et seq.
Reliance was placed by the defendant upon the decision of Wilson DCJ in Howe v State of South Australia and Belperio (1998) 196 LSJS 182. In that case his Honour reviewed a number of authorities relating to public interest immunity. The case involved a claim by the plaintiff (who was the victim of rape) for damages under the Criminal Injuries Compensation Act.
The second defendant, the offender, sought non-party discovery of documentation from Yarrow Place - Rape Sexual Assault Service. His Honour formed a view that the documentation sought was discoverable. He came to the conclusion that, in reconciling the need for the Rape Centre to preserve the confidentiality of its dealings with its clients and the need for the Court to have all material evidence before it before deciding upon the plaintiff’s claim, that the public interest immunity claim ought to be upheld. I have some doubt as to whether that decision may be regarded as good law if the approach taken by his Honour is compared with the analysis of the case law by Spigelman CJ in R v Young. In that case, Spigelman CJ said that the provision of counselling as dealt with in R v Young did not constitute a governmental function. It could well be argued that the public interest immunity claim should not have been upheld in Howe because the Rape Sexual Assault Service is not something which can be characterised as a governmental function. I think I should follow the decision of the Court of Appeal in New South Wales. In so doing, the claim for public interest immunity must be rejected.

The Adoption Papers

There has, as I understand it, been no claim for public interest immunity in relation to the adoption papers, but if I am wrong in that understanding, there is, in any event, no factual basis to support such a claim. Instead reliance has been placed upon the provisions of the various adoption Acts. My attention has been drawn to the provisions of the Adoption of Children Act 1925 and the regulations made thereunder, the Adoption of Children Act 1966 and the regulations made thereunder, and the Adoption Act 1988. It is clear from the regulations made under the first Act, in particular Regulation 23, that adoption papers must be kept confidential in circumstances where the application has been made on the basis that the identity of the child the subject of the adoption shall not be made known to the adopting parents.
A number of provisions in the 1966 Act (Sections 46, 56 and 67) impose restrictions in relation to the publication and dissemination of papers relating to adoption proceedings. In the 1988 Act it is provided, as it is in the previous Acts, that the records of the proceedings for an adoption order will not be open to inspection (Section 24(2)).
In my view, none of the provisions affects the documentation which is held by the Department of Human Services. Consequently, I do not see how the defendant can resist the order for production.
For the above reasons, there will be an order for the production of the documents the subject of the application. I am not unmindful of the need to preserve confidentiality in relation to the documentation and I think that, although there is an implied undertaking as to confidentiality, this is a case where it would be appropriate, before production, for the plaintiff and his legal advisers to provide to the court in written form an undertaking not to disclose the material to any other person except for the legitimate purposes of pursuing these proceedings and that the documentation will not be used for any other purpose other than in relation to these proceedings.

[2000] SASC 317

15 September 2000