Milisits v The State of South Australia
[2014] SASCFC 67
•4 July 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MILISITS v THE STATE OF SOUTH AUSTRALIA
[2014] SASCFC 67
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Nicholson)
4 July 2014
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - IN GENERAL
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - STATEMENTS MADE IN RESPECT OF A DUTY OR INTEREST - GENERALLY
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - STATEMENTS MADE IN RESPECT OF A DUTY OR INTEREST - PARTICULAR STATEMENTS - ON MATTERS OF PUBLIC INTEREST
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - STATEMENTS MADE IN RESPECT OF A DUTY OR INTEREST - PARTICULAR STATEMENTS - PUBLICATION FOR THE PUBLIC GOOD
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - IRRELEVANCE
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - PUBLIC INTEREST IMMUNITY
The plaintiff and appellant, Vili Milisits, has brought an action in defamation against the defendant and respondent, the State of South Australia. Mr Milisits is a well-known baker in South Australia. The claim relates to publications made by Kevin Bucket, the Public Health Director of the Department of Health, during press conferences on 4 and 18 February 2011, and a radio broadcast on 7 February 2011. Mr Milisits complains of statements by Dr Bucket on these occasions which Mr Milisits alleges conveyed imputations that he was engaged in the production and sale of custard Berliner buns infected or contaminated with salmonella. The State advances a plea of justification on the basis that there was sufficient epidemiological evidence in its possession which supported a conclusion that some of Mr Milisits’ products were contaminated with salmonella. This evidence included the results of survey interviews conducted by the Communicable Disease Control Branch of the Department of Health with persons who had contracted salmonella. The State disclosed documents that recorded the results of these survey interviews but redacted information from them that would identify the interviewees. Mr Milisits applied for an order that the State produce un-redacted copies. A Master of this Court made orders for production, rejecting claims made by the State of lack of relevance and public interest immunity. The State appealed against the decision of the Master to a Judge of this Court. The Judge agreed with the Master that the redacted material was relevant. However, the Judge considered that the redacted information was the subject of public interest immunity and, as a consequence, allowed the appeal.
Whether the Judge erred in finding that the material was relevant. Whether the Judge erred in finding that the material attracted public interest immunity.
Held per Gray J (Peek and Nicholson JJ agreeing) allowing the appeal and dismissing the notice of contention:
1. The redacted information is relevant to the pleas of justification and qualified privilege. Disclosing the identity of the interviewees allows the plaintiff to test whether the data on which the defendant relied provided a basis for the impugned imputations.
2. Sections 42 and 42A of the Public and Environmental Health Act 1987 (SA) are premised on there being an obligation of confidentiality. However, both sections make it clear that confidential information may be disclosed in certain identified circumstances, including by order of the court.
3. The offering of an unqualified undertaking of confidentiality cannot convert the identities of such persons into information protected by public interest immunity.
4. There was insufficient evidence to allow the conclusion that disclosure of the redacted information would be injurious to the public interest.
5. The balancing exercise favours the disclosure of the redacted information.
Public and Environmental Health Act 1987 (SA) s 42 and s 42A; Food Act 2001 (SA) s 110; Crown Proceedings Act 1992 (SA) s 5, referred to.
The State of South Australia v Milisits [2013] SASC 189; Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158; Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313; Palmer v John Fairfax & Sons Ltd (1986) 5 NSWLR 727; Zarro v Australian Securities Commission (1992) 36 FCR 40; The Australian Statistician v Leighton Contractors Pty Ltd (2008) 36 WAR 83; Australian Red Cross Society v BC [1991] VSC 87; Afflito v Commonwealth [2003] NSWSC 276; Wrann v Australian Broadcasting Commission [1984] 3 NSWLR 241; Adelaide Brighton Cement Ltd v South Australia (1999) 204 LSJS 325; Medical Board v Fisher (2000) 76 SASR 242; D v National Society for the Prevention of Cruelty to Children [1978] AC 171; Royal Women’s Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85; BC v Australian Red Cross Society [1991] VSC 68; PD v Australian Red Cross Society (New South Wales Division) (1993) 30 NSWLR 376; NJ v Australian Red Cross Society [1996] VSC 299, considered.
MILISITS v THE STATE OF SOUTH AUSTRALIA
[2014] SASCFC 67Full Court: Gray, Peek and Nicholson JJ
GRAY J.
This is an appeal from a decision of a Judge of this Court setting aside an order of disclosure made by a Master of the Court in defamation proceedings. The Judge concluded that the defendant was relieved of the obligation to produce un-redacted copies of discovered documents on the basis of public interest immunity.
Introduction
The plaintiff and appellant, Vili Milisits, has brought an action in defamation against the defendant and respondent, the State of South Australia. Mr Milisits is a well-known baker in South Australia, trading as Vili’s. The claim relates to publications by Kevin Bucket, the Public Health Director of the Department of Health. The publications were made during press conferences on 4 and 18 February 2011, and a radio broadcast on 7 February 2011. Mr Milisits complains of statements by Dr Bucket on these occasions which Mr Milisits alleges conveyed imputations that he was engaged in the production and sale of custard Berliner buns infected or contaminated with salmonella.
The Department of Health is the government instrumentality responsible for the provision of health services to members of the public for and on behalf of the State. The Department supports the Minister for Health, who has the responsibility for the administration of the Public and Environmental Health Act 1987 (SA) and the Food Act 2001 (SA). The Department of Health is sued in the name of South Australia pursuant to section 5 of the Crown Proceedings Act 1992 (SA).
The State denies that the alleged imputations arise from the pleaded publications but says, in any event, that the publications were justified, were made on an occasion of qualified privilege, and were protected by a statutory immunity conferred pursuant to section 110 of the Food Act. By his reply, Mr Milisits alleges the State was actuated by malice in publishing the impugned statements.
It is common ground between the parties that no trace of salmonella was found in Mr Milisits’ factory, nor in any custard Berliner bun produced by his business.
The State advances its plea of justification on the basis that there was sufficient epidemiological evidence in its possession which supported a conclusion that some of Mr Milisits’ products were contaminated with salmonella. This evidence included the results of survey interviews conducted by the Communicable Disease Control Branch of the Department of Health with persons who had contracted salmonella.
The State disclosed documents that recorded the results of these survey interviews but redacted information from them that would identify the interviewees. Mr Milisits applied for an order that the State produce un-redacted copies.
The Master made orders for production, rejecting claims made by the State of lack of relevance and public interest immunity. The Master reasoned that the information contained in the documents identifying the interviewees was relevant:
There are two essential bases upon which the [State] opposes the provision of that information. Firstly, it argues that it is not directly relevant to any issue on the pleadings between the [parties]. The [State] asserted in argument that it would not rely at trial on anything other than the redacted documents, copies of which it had supplied to [Mr Milisits]. It would not in any circumstances call any of the persons who provided the case questionnaires. As the [State] asserted that the statements made by Dr Buckett were justified by the epidemiological evidence, the actual identity of those persons who provided the base material for that evidence was irrelevant. However, the [State] goes further than that in its defence at paragraph 19, when it pleads as justification that “the matters complained of were true or substantially true in substance and in fact”. It relies on provisions in the Food Act in paragraph 25 of the defence, and in particular in sub-paragraph 25.3 it relies on the powers to make binding orders and to issue publication of warnings to the public “where there are reasonable grounds to believe than [sic] an order is necessary to prevent or reduce the possibility of a serious danger to public health …”. Further, it relies on the statutory immunity provided by s 110 of the Food Act, which provides protection for “an honest act or omission in the exercise or discharge, or purported exercise or discharge, of a power, function or duty under this Act”.
On the topic of public interest immunity, the Master considered that the determination of whether the redacted material attracted public interest immunity required a balancing exercise between the public interest in the State maintaining the confidentiality of persons providing information concerning communicable diseases and the public interest in a court having all relevant evidence available in the adjudication of a legal dispute. The Master concluded:
In my view, the relevant aspects of the case questionnaires are limited to the informant’s eating pattern over a period of 7 days or so prior to becoming ill with Salmonella. The information contained therein when limited to that material is not particularly sensitive. It would be reasonable to suspect that many of those informants would not have any particular objection to that information and their contact details being made available to the [Mr Milisits] in the circumstances of this particular matter. In any event, in carrying out the necessary balancing exercise the requirement that evidence necessary for justice to be done should be freely available to those who litigate in our Courts (Stephen J in Sankey v Whitlam (supra) at 48-49) outweighs in this case any prejudice to the national or public interest in preventing that disclosure.
The State appealed against the decision of the Master to a Judge of this Court. The Judge agreed with the Master that the redacted material was relevant. However, the Judge considered that the redacted information was the subject of public interest immunity and, as a consequence, allowed the appeal.
The Judge considered that the State was under an obligation to maintain the confidentiality of the identity of the interviewees:[1]
... I am satisfied the information which discloses the identity of the interviewees was obtained in circumstances that imposed upon the appellant an obligation to maintain confidentiality. First, because the [State] promised the interviewees that the information they provided would be kept confidential. Secondly, and more importantly, because the work of the [Communicable Disease Control Branch] is subject to statutory obligations of confidentiality. On the hearing of the appeal, there was a question as to whether the relevant statute is the Public and Environmental Health Act 1987 (SA) or the South Australian Public Health Act 2011 (SA). It is unnecessary to determine which Act applies because the statutory provisions which impose obligations of confidentiality on the persons undertaking the surveys are in pari materia. Those provisions prohibit a person who obtains personal information about another person in the course of the performance of official duties from intentionally disclosing that information except to the extent authorised by the statute. Those exceptions include where disclosure is required by law or a court or a tribunal constituted by law. The information which is protected is medical information or information relating to a person’s personal affairs.
In my view, information identifying the names and addresses of the interviewees is confidential information for the purposes of the statutes...
[1] The State of South Australia v Milisits [2013] SASC 189, [16]-[17].
It is convenient to refer to the Judge’s further reasons during later discussion.
Full Court Appeal
On the appeal to the Full Court, Mr Milisits contended that the Judge had erred in four respects in reaching his conclusion that public interest immunity precluded the production of the documents. It was first contended that the Judge was in error in holding that the Master had failed to direct his attention to the risk of disclosures in the future without an assurance of confidentiality and that, as a consequence, the Master had failed in his undertaking of the balancing exercise. The remaining complaints addressed the reasoning of the Judge, in particular challenging his conclusions that the threshold for a claim of public interest immunity had been met, that the claim for immunity was a class claim and, finally, the Judge’s exercise of the balancing process.
The State supported each of the Judge’s conclusions. Additionally, the State, by way of notice of contention, complained that the Judge’s conclusions as to relevance were flawed. It is convenient to first address this question.
Relevance
On the topic of relevance, the Judge reasoned:[2]
The [State] submits that information disclosing the identities of the interviewees is irrelevant. While [Mr Milisits] is entitled to test the epidemiological evidence relied upon by the [State] in making the impugned publications, it does not need to interview the survey respondents in order to do so. The [State] submits [Mr Milisits] is engaged in a fishing expedition, hoping something will turn up if he speaks to the interviewees. Further, it submits there would be little utility in speaking with those who were interviewed by the [Communicable Disease Control Branch] for the purpose of testing the answers they gave at interview now because of problems related to the failings of memory given the effluxion of time and the risk of recall bias.
[Mr Milisits] submits that the identities of the interviewees are relevant, or at least the disclosure of this information serves a legitimate forensic purpose because it is necessary for [him] to be able to test the answers that were given by the interview subjects in order to determine whether their answers were accurately or completely recorded, or whether they may have been mistaken in some of the answers they gave. He submits that this would be directly relevant to the probative value of the data upon which the [State] seeks to rely for the purposes of mounting its defence of justification of the imputation that [he] produced and/or sold Berliner buns infected or contaminated with salmonella. On that basis [Mr Milisits] is entitled to speak to the interviewees for the purposes of the preparation of his case for trial. He submits that logic suggests that far from being irrelevant, evidence from the interviewees is likely to be probative of the reliability of the survey. Insofar as the appellant contends that there is no utility in testing the answers given by the interviewees now because of the problems of faulty memory or recall bias, these are matters which only go to weight rather than relevance.
In my view, [Mr Milisits’] submission must be accepted.
The [State] is seeking to justify the publication by it that [Mr Milisits] produced and/or sold Berliner buns infected or contaminated with salmonella. It seeks to justify this imputation, at least in part, by reliance upon information obtained from the survey interviews. There is an obvious forensic purpose in the respondent being able to test the information obtained through the surveys. This is not a fishing expedition. A fishing expedition involves seeking disclosure of documents in the hope that something will turn up of assistance to the party seeking disclosure in the documents themselves. In this case, the contents of the documents have been disclosed except for any information which identifies the interviewees. The information in the disclosed documents revealing the identities of the interviewees potentially is relevant to any proper testing of the epidemiological evidence. Whether any basis exists to impugn the answers given by the respondents in their interviews is purely speculative at this stage. But that does not make their identities irrelevant. The criticism of the methodological flaws that might be inherent in the process of testing the interviewees’ answers merely goes to the weight of such evidence, not its relevance. In my view, the redacted information is relevant. Accordingly, there is no proper basis for refusing disclosure of the redacted information on the ground of relevance. That leaves the issue of whether the information is protected from disclosure by public interest immunity.
[2] The State of South Australia v Milisits [2013] SASC 189, [18]-[21].
On the appeal, the State pointed out that Mr Milisits did not in his statement of claim challenge the merit of the epidemiological surveys. Counsel argued that the State merely asserted that it had relied on the epidemiological data as a whole to support its findings and that it did not seek to elevate the individual responses which together comprised the data to singular significance. The State contended that it was the cumulative effect of the data obtained by interview that was relevant to the plea of justification.
The State submitted that the survey itself was admissible and that the State was entitled to rely on the survey to support the plea of justification.
In Ritz Hotel Ltd v Charles of the Ritz Ltd, McLelland J conducted a review of the authorities on the use of survey evidence and said:[3]
There is a substantial preponderance of authority in support of the proposition that survey evidence, and expert evidence in relation thereto, are admissible to prove the state of mind of the public or a section of the public on some particular matter, when that is an issue. However, two distinct bases emerge from the cases in justification of the admissibility of such evidence. The first is that although out-of-court statements by persons interviewed in the course of a survey as to their impressions or opinions are of a hearsay nature, the admission of such statements as evidence of the existence of those impressions or opinions falls within a recognised exception to the hearsay rule. On this approach, the primary evidence is that of the individual responses of those interviewed, interpretative expert evidence being subsidiary. The second basis is that such statements are to be treated not as hearsay, but as original data providing a foundation for expert evidence as to the state of public opinion on the matter in question. On this approach, the primary evidence is that of the expert, and evidence of the individual responses is subsidiary.
[3] Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158, 178.
These remarks were approved by the Full Federal Court in Arnotts Ltd v Trade Practices Commission.[4] The Court further remarked:[5]
In Ratten v R [1972] AC 378 at 387 the Judicial Committee of the Privy Council explained the rule in these terms:
If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on ‘testimonially’, ie as establishing some fact narrated by the words.
However, when a party seeks to adduce evidence of answers given by respondents to a market survey in order to prove what products they customarily purchase or consume, that party seeks to rely upon the answers testimonially. The evidence is tendered as proof of the facts asserted by the interviewees, so the evidence is hearsay.
...
However, it is not very profitable — at least in this court — to spend time in determining whether a particular survey is hearsay evidence. Even if it is, ordinarily the court will have a discretion under O 33, r 3 to permit the evidence to be adduced. To call the persons who responded to the survey will almost always result in appreciable expense and delay. Given the existence of a discretion, it seems more sensible to concentrate attention upon the necessity for, and reliability of, the survey evidence, rather than to worry about its compliance with rules regarding hearsay evidence which were developed before this type of problem arose. This is not a situation, like that encountered in Pearce v Button (1986) 8 FCR 408; 65 ALR 83 where the evidence sought to be adduced is the subject of “a real dispute about matters which go to the heart of the case”: see per Lockhart J (FCR at 422); see also Multi Modal Ltd v Polakow (1987) 78 ALR 553 at 558.
[4] Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313.
[5] Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313, 359-61.
When pressed, however, counsel for the State acknowledged that it was difficult to avoid the conclusion that an issue in the case was the reliability of the data on which the epidemiological survey was based. Counsel acknowledged that the data could be described as building blocks and accepted that the reliability of those building blocks was relevant to a determination of the proceeding. In my view, counsel’s acceptance of these propositions was appropriate. Acceptance of these propositions allows the conclusion that the documents in their un-redacted form are relevant to the pleaded defence of justification and are discoverable, subject to the claim of public interest immunity.
Counsel for Mr Milisits contended that the un-redacted copies were also relevant to the defence of qualified privilege and in that respect referred to the following observations in Palmer v John Fairfax & Sons Ltd:[6]
There is a wealth of authority supporting a plaintiff's right to interrogate the defendant as to the information which it had in its possession in relation to the matter complained of at the time of its publication where qualified privilege is pleaded: Elliott v Garrett [1902] 1 KB 870 at 872-874; White & G Co v Credit Reform Association and Credit Index Ltd [1905] 1 KB 653 at 658-659, 660; Plymouth Mutual Co-operative and Industrial Society Ltd v Traders' Publishing Association Ltd [1906] 1 KB 403 at 412-413, 418; Lyle-Samuel v Odhams Ltd [1920] 1 KB 135 at 143; South Suburban Co-operative Society Ltd v Orum [1937] 2 KB 690 at 701-703, 704; Georgius v Oxford University Press (Delegates) [1949] 1 KB 729 at 732; Broadcasting Corporation of New Zealand v Alex Harvey Industries Ltd [1980] 1 NZLR 163 at 169, 175, 180. All of these cases were concerned with the common law defence of qualified privilege; their application to the statutory defence of qualified privilege is all the more direct because of the reversal of the onus of proof effected by s 22 (as the Court of Appeal has interpreted it) upon this issue of belief in the truth of what was published: see Barbaro v Amalgamated Television Services Ltd (1985) 1 NSWLR 30 at 44...
...
The issue being the condition of the defendant's mind at the time of publication, the reasonableness of its conduct will depend to a large part upon whether that information in its possession provided a firm or a logical basis for the imputations which were conveyed and upon whether the inferences which have been drawn from that information and published by the defendant were reasonably open from that information: Wright v Australian Broadcasting Commission (at 712). If they were based upon a flimsy (or upon no) foundation, then it will not be held that the defendant's conduct was reasonable in the circumstances (ibid at 701). Those statements in Wright's case clearly enough originated, at least in part, in the Law Reform Commission's Report on Defamation, where it was suggested that it would be relevant under this issue to consider the care taken by a defendant to convey accurately the truth as that truth existed within the defendant's knowledge (that is, the information which it had and which it believed to be true) and to inform the recipient of any uncertainty which the defendant had as to the truth of what it published: LRC 11, par 105 at 111-112. At common law, both the amount of information obtained by the defendant at the time of publication and whether that information was of a kind upon which a person could reasonably be supposed to have acted bona fide to publish what was published are relevant to the honesty of the defendant's belief in the truth of that material: White & Co v Credit Reform Association and Credit Index Ltd (at 658, 660).
[Emphasis added.]
[6] Palmer v John Fairfax & Sons Ltd (1986) 5 NSWLR 727, 729-30. See also Wrann v Australian Broadcasting Commission [1984] 3 NSWLR 241, 250.
In my view, discovery of the un-redacted material is relevant to the plea of qualified privilege. As discussed above, a relevant issue is the State’s knowledge at the time of publication. The reasonableness of the State’s conduct will depend in part upon whether the information in its possession provided a basis for the imputations which were conveyed and whether inferences which may have been drawn from that information and published by the State were reasonably open from that information. Could it be said that the departmental officers could reasonably be supposed to have acted bona fide in publishing what was published? These are matters that go to the belief of the relevant departmental officers as to the truth of the material on which the publication was based.
Public Interest Immunity
Before coming to discuss the particular submissions advanced in the present case, it is convenient to first address the principles applicable to public interest immunity. Those principles were, with respect, accurately and succinctly summarised by Debelle J in Adelaide Brighton Cement Ltd v South Australia.[7]His Honour’s analysis included the following:[8]
[7] Adelaide Brighton Cement Ltd v South Australia (1999) 204 LSJS 325.
[8] Adelaide Brighton Cement Ltd v South Australia (1999) 204 LSJS 325, 328, cited with approval in Medical Board v Fisher (2000) 76 SASR 242.
(1) The general rule is that a court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it: Sankey v Whitlam (1978) 142 CLR 1 at 38.
(2) However, the court recognises that there are two aspects to the public interest which may conflict. They were described by Lord Reid in Conway v Rimmer [1968] AC 9l0 at 940 in these terms:
'There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.'
Those observations were adopted by Gibbs ACJ in Sankey v Whitlam at 38. Stephen J expressed the competition between these two aspects of the public interest in these terms in Sankey v Whitlam at 48-49:
'These principles, stated in their broadest form, each reflect different aspects of the public weal. 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.'
(3) It is the duty of the court, not the privilege of the executive, to determine whether a document will be produced or may be withheld: Sankey v Whitlam at 38, 58-59, 95-96. As Stephen J said in Sankey v Whitlam at 58, a claim to Crown privilege has no automatic operation; it always remains a function of the court to determine that claim.
(4) The court determines whether a document should be produced or withheld by deciding whether the public interest which requires that the document should not be produced outweighs the public interest that a court in performing its functions should not be denied access to relevant evidence: Sankey v Whitlam at 38-39. In Commonwealth v Northern Land Council (1993) 176 CLR 604 at 616 the court approved the following observations of Gibbs ACJ in Sankey v Whitlam at 43.
'I consider that although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure for ever. The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interest of justice. The court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection - the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned. If a strong case has been made out for the production of the documents, and the court concludes that their disclosure would not really be detrimental to the public interest, an order for production will be made.'
See also Sankey v Whitlam per Stephen J at 63-64 and per Mason J at 98-99.
(5) When carrying out this balancing task, the court will give weight to the Minister's opinion that the documents should not be produced but will form its own opinion whether the public interest will be the better served by production or non-production: Sankey v Whitlam at 44-45, 96.
(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 per Stephen J at 62; 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.
(7) ... [T]here can be no single rule of thumb by which to determine whether a document should be produced for inspection... The fundamental principle is that documents may be withheld from production only if, and to the extent that, the public interest renders it necessary...
...
I have applied these principles in my consideration of the issues on this appeal, and, in particular, to the submission that public interest immunity arises in regard to the contents of particular documents or as a class claim.
It is now convenient to turn to the relevant provisions of the Public and Environmental Health Act:
42—Confidentiality
Where a person, in the course of official duties, obtains—
(a) medical information relating to another; or
(b)information the disclosure of which would involve the disclosure of information relating to the personal affairs of another,
the person shall not intentionally disclose that information unless—
(c) the disclosure is made in the course of official duties; or
(d) the disclosure is made with the consent of the other person; or
(e) the disclosure is required by a court or tribunal constituted by law.
Penalty: Division 6 fine.
42A—Provision of certain information
(1) This section applies to a person employed or engaged by the State for the purpose of—
(a) monitoring public health in the State; or
(b) investigating public health problems within the State; or
(c) assessing and improving the quality of public health in the State.
(2) The Governor may, by instrument in writing, authorise a person to whom this section applies to have access to confidential information relating to the performance of any function referred to in subsection (1).
(3) Confidential information may be disclosed to a person authorised under subsection (2), and to any person providing technical, administrative or secretarial assistance to that person, without breach of any law or any principle of professional ethics.
(4) A person must not disclose confidential information obtained directly or indirectly pursuant to this section unless—
(a) the disclosure is made in the course of official duties; or
(b)the disclosure is made with the consent of the person to whom the information relates; or
(c) the disclosure is required by a court or tribunal constituted by law.
Penalty: Division 6 fine.
(5) In this section—
confidential information means—
(a) medical information; or
(b) information relating to a person's personal affairs.
The Contents of the Documents Claim
The State submitted that sections 42 and 42A of the Public and Environmental Health Act create a regime of non-disclosure, breach of which is an offence, with certain limited exceptions permitting disclosure. It was said that the exceptions defined the limit of the criminal offence and that those exceptions are not a scheme or a right through which access to information is facilitated. The State accepted that no promise of confidentiality could be absolute and that such a promise by a party could not of itself tie the court’s hands. However, it was said that a promise of confidentiality remained a relevant factor to be weighed in the same way that a promise of confidentiality to an informant by a law enforcement officer or a source by a journalist can be addressed in appropriate circumstances by a court.
It may be accepted that sections 42 and 42A of the Public and Environmental Health Act are premised on there being an obligation of confidentiality. The provisions treat as confidential medical information and information relating to a person’s personal affairs, but neither section explicitly provides that a person’s identity is confidential information. For the purposes of the appeal, however, I am prepared to proceed on the basis that information related to a person’s personal affairs includes their identity.
Both sections make it clear that confidential information may be disclosed in the following identified circumstances: with the consent of the other person; when made in the course of official duties; or when required by a court or tribunal constituted by law. There is no definition of the word “person” or the phrase “in the course of official duties”. A review of the provisions of the statute would suggest that both expressions are of wide import. It follows that correctly informing a person about confidentiality would include explaining the circumstances of authorised disclosures. It may be accepted that issues of public interest immunity may properly arise for consideration in determining whether a court would order disclosure.
In the within proceedings, Anne Patrice Koehler has sworn affidavits of 12 November 2012, and 14 January and 31 May 2013 describing the circumstances in which the redacted documents were prepared. Dr Koehler is a registered medical practitioner with a qualification in pathology, specialising in microbiology, and the holder of a Masters degree in public health. She has held the office of Director of the Communicable Disease Control Branch of the Department of Health and Ageing since 2006. Her duties include the responsibility for the control of notifiable diseases in South Australia, the surveillance of all notifiable diseases and reporting of data to the National Notifiable Diseases Surveillance System, and the detection and control of communicable diseases – usually food borne.
In late January 2011, the number of notifications of salmonella was greater than expected and an investigation was initiated. The investigation looked for any similarities in those cases where people had been notified as ill pursuant to the Public and Environmental Health Act. People who had tested positive to the particular strain of salmonella were contacted in what were described as hypothesis generating interviews, that is, for the purpose of developing a reasonable cause of the outbreak. Twenty four hypothesis generating surveys were completed, following which the investigation moved to an analytical study to test the hypothesis. It was determined that a case study was the most appropriate type of analytical study.
Dr Koehler authorised the engagement of the University of Adelaide to conduct case controlled interviews of people who were matched on age group to cases and had not recently travelled or experienced gastro-intestinal illness. Dr Koelher’s staff prepared a form of questionnaire to be used by the University of Adelaide to conduct the controlled study. Sixty one case interviews were conducted.
The University contracted Harrison Health Research to conduct the interviewing. All interviews were performed using computer assisted telephone interviewing. That system enables data to be directly entered into the database, and eliminates the need for handwritten records. This information came from an email from the University to Dr Koehler on 9 January 2013.
Following completion of the survey, a statistically significant association between illness and the consumption of particular foods was identified. A team of national experts, including microbiologists and epidemiologists, agreed that the particular strain of salmonella was not the same as that seen in other States at the same time.
Dr Koehler explained that each person interviewed was identified by a number which tracked the case notification, laboratory result and interview sample. No reference was made in the epidemiological statistical analysis to the identity of the individuals.
Exhibited material before the Court demonstrates that a number of the relevant interviews were conducted by named interviewers with hand entries being made to the questionnaire forms. The documents disclose the date and time of the interview, but the information concerning the interviewee, although apparently recorded, has been redacted. In the two exhibited questionnaires before the Court, one has a pro-forma introduction advising that all responses are “totally confidential” and the other simply “confidential”. Neither form suggests that the name of the interviewee is confidential. The questionnaires include questions concerning particular foodstuffs and enquiring about whether the interviewee has eaten such an item in the past seven days.
In her affidavit of 31 May 2013, Dr Koehler states that:
Staff informed participants that all responses are confidential and gave the participants an option to proceed at that point or discontinue.
As discussed above, sections 42 and 42A of the Public and Environmental Health Act provide no such blanket protection, and section 42(e) explicitly exempts a disclosure that is required by a Court. If the Communicable Disease Control Branch, or others on its behalf, provided unqualified assurances of confidentiality to the interviewees, they were unjustified in doing so – no absolute assurance could be given. The offering of an undertaking of confidentiality cannot convert the identities of such persons into information protected by public interest immunity.
The analogy proffered by the State of police informants is unconvincing. One rationale for the protection given to police informers is that sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. There is no evidence before this Court of such a drying up of disclosure by future interviewees of their eating patterns.
Police informers not infrequently fear for their safety or their lives at the hands of third parties by reason of their disclosures. The concealment of the identities of informants of the kind in D v National Society for the Prevention of Cruelty to Children[9] is also premised on the protection from retribution by third parties. There can be no meaningful analogy to the present case.
[9] D v National Society for the Prevention of Cruelty to Children [1978] AC 171.
The Class Claim
As earlier noted, a party may make a claim for immunity for a particular class of documents without reference to their particular contents. The distinction between such documents and those which ought not be disclosed only because of their contents was explained by the High Court in Commonwealth v Northern Land Council, though the Court accepted that the distinction is “often rough and imprecise”.[10] In the case of both types of documents, the protection is not absolute. However, a claim for production of a class of document requires from the courts a very much more cautious approach. In such a case, a court will “lean initially against ordering disclosure”, and “the degree of protection against disclosure which is called for by the nature of that class will dictate the paramount of the claim for immunity in all but quite exceptional situations”.[11]
[10] Commonwealth v Northern Land Council (1993) 176 CLR 604, 617.
[11] Commonwealth v Northern Land Council (1993) 176 CLR 604, 618.
Class documents have been held to include papers that record actual Cabinet deliberations, and those that would cause serious damage to the proper working of government at the highest level.[12] The High Court’s discussion of the kind of documents that attract immunity as a class, and the high degree of protection against disclosure that such documents warrant, suggest that questionnaires recording the seven day eating patterns of persons who contracted salmonella, and the identities of those persons, do not attract “class” immunity.
[12] Commonwealth v Northern Land Council (1993) 176 CLR 604, 618.
In Zarro v Australian Securities Commission, Lockhart J observed that, although the classes are not closed:[13]
... It must only be in rare cases of documents at high levels of government involving matters of national importance that the class doctrine can apply... Documents within the possession of the ASC (an investigative and law enforcement agency) of a confidential nature, which record information received by it concerning possible offences or irregularities and recording the possible course of investigations or information with respect to evidence concerning proceedings to which the ASC is a party, plainly may fall within the scope of public interest immunity; but as at present advised I cannot conceive of a case where they would fall within the class doctrine and thus be immune from disclosure irrespective of the contents of any particular document.
[13] Zarro v Australian Securities Commission (1992) 36 FCR 40, 46; cited with approval in Royal Women’s Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85.
Central to the conclusion of the Judge under appeal that the documents attracted class immunity was the finding that:[14]
The knowledge that his or her identity might be disclosed to the party suspected of being responsible for the infection or contamination might have a chilling effect on persons who in future the [Communicable Disease Control Branch] would need to interview for the purpose of identifying the source of an outbreak…
[14] The State of South Australia v Milisits [2013] SASC 189, [33].
Counsel for Mr Milisits submitted that the evidence did not support this finding. It was said that there was no evidence, and no basis for an inference, that interviewees would have any reason to fear repercussions from the manufacturer or distributor of foodstuffs. In my view, this submission should be accepted. There was simply no evidence sufficient to provide a basis for such an inference.
The Judge under appeal placed particular reliance on the decision of the Western Australian Court of Appeal in The Australian Statistician v Leighton Contractors Pty Ltd.[15] The Court upheld an argument for public interest immunity over documents prepared by the Australian Bureau of Statistics in undertaking surveys for the purpose of preparing a statistical index in relation to changes in the price of building materials. The information, collected from a small group of interviewees in the building industry on a voluntary basis, was commercially sensitive and confidential. The Bureau of Statistics collected the information on the basis that it would remain confidential. The party to the litigation seeking disclosure of the information was a large purchaser of building materials. There was evidence before the Court given by a Deputy Statistician, Mr Harper, that disclosure of the information would engender a fear among the “respondent community”, that is, persons in the industry who are likely to be called on to disclose their sensitive commercial information, that such information would not be safe. The Court was prepared to draw the inference on the evidence that the voluntary cooperation of survey respondents in the future would be compromised.
[15] The Australian Statistician v Leighton Contractors Pty Ltd (2008) 36 WAR 83.
It is important to recognise that the factual situation before the Western Australian Court in The Australian Statistician v Leighton Contractors Pty Ltd[16] was different to that being discussed in the present proceeding. In this matter, it is unlikely that the same persons would ever be called on again to answer the same questions. There is no discrete “respondent community” of the kind referred to in the evidence in that case, whose members would rapidly learn that their confidential trade information might be at risk in cooperating with the Australian Bureau of Statistics. Further, the implications of the disclosure of commercially sensitive information could be expected to be far more significant than the implications of the disclosure of eating patterns over the course of a few weeks.
[16] The Australian Statistician v Leighton Contractors Pty Ltd (2008) 36 WAR 83.
I am prepared to accept that there may be information in certain medical surveys, the disclosure of which would make the public less likely to respond to surveys in future. However, I am not prepared to accept that this is a real risk or possibility on the evidence before the Court. Ms Koehler’s affidavit only asserted this risk in brief and general terms and the surveys do not contain information of a sufficiently private or sensitive nature to allow me to infer such a risk.
It should also be noted that the legislation under consideration by the Western Australian Court in The Australian Statistician v Leighton Contractors Pty Ltd[17] did not contain a provision analogous to sections 42 or 42A of the Public and Environmental Health Act, which specifically exempts information from the obligation of confidentiality when required by a court or legally constituted tribunal.
[17] The Australian Statistician v Leighton Contractors Pty Ltd (2008) 36 WAR 83.
In my view, it was not open on the evidence to conclude that any class immunity attached to the redacted documents.
The Balancing Exercise
The evidence before the Court is insufficient to allow a conclusion to be drawn that the disclosure of the identity of the interviewees is likely to prejudice the provision of information to the Communicable Disease Control Branch in the future by other persons. There is no basis established by the evidence to allow a conclusion that there is likely to be fear among interviewees of retribution by third parties whose products might have been responsible for their illness. It is not without relevance that over half of the infected persons did not report eating any Vili’s product.
It was the submission of counsel for Mr Milisits that the names of the interviewees are significant to his client’s case. Mr Milisits wishes to identify the source of the assertions upon which the State relied, and to test the veracity or reliability of the information given by the interviewees. This is an important matter to the pleas of justification and qualified privilege. The State may be able to develop its inferential case that the Vili’s products were responsible for cases of salmonella. However, the relevant question is whether the redacted material should be disclosed to assist Mr Milisits to meet these defences.
There is a line of authority which concerns claims of public interest immunity over the identity of a blood donor where the recipient of a blood transfusion has become infected. In each of the blood donation cases, the court ordered disclosure of the confidential information of the donor, subject to certain restrictions on how that information could be used. The courts’ approach to undertaking the balancing exercise in those cases is instructive.
In BC v Australian Red Cross Society,[18] Cummins J conducted a thorough review of the authorities on public interest immunity and ordered disclosure of the personal information of the donor. Relevantly, the legislation provided for confidentiality of donor identity, subject to disclosure by the court, and the Red Cross had asserted – through affidavit evidence of qualified, senior medical practitioners – that disclosure of the donor’s identity would make it more difficult for it to obtain blood donations in future. His Honour relevantly considered that if the donor would not personally be the subject of legal proceedings then disclosure would be less likely to undermine the system of voluntary blood donations. It is to be noted in the present case that there is no suggestion that Mr Milisits intends to join the interviewees as parties to this proceeding.
[18] BC v Australian Red Cross Society [1991] VSC 68. Leave to appeal from this decision was refused in Australian Red Cross Society v BC [1991] VSC 87.
In PD v Australian Red Cross Society (New South Wales Division),[19] the New South Wales Court of Appeal, in assessing the detriment to the public interest of an order for disclosure, had regard to a survey which asked respondents whether disclosure of their personal information would make them less likely to donate blood. The legislation in that case allowed for the disclosure of confidential information by consent, in connection with the administration of the Act, or by order of the court. Notwithstanding the “very serious and disturbing results” of the survey,[20] the Court made an order for disclosure, concluding that:[21]
... It is clear that since the commencement of the Public Health Act parliament has authorised the courts, in appropriate cases, to order disclosure of information enabling a blood donor who has given HIV contaminated blood since the commencement of the Act, to be identified and traced.
In these circumstances, it is clear that intending donors cannot look to the Red Cross for any effective promise or assurance that it will be able to preserve their anonymity in relation to current and future donations; in the proper case the court may order disclosure subject to appropriate restrictions and safeguards. What the Red Cross can do is assure intending donors that all information given by them to the Red Cross will be kept confidential and that the only circumstances in which it will ever disclose information would be if required to do so by Act of Parliament or court order and that the court would be asked that any order should be subject to appropriate restrictions and safeguards. In the present case, however, no such evidence was put before the Court.
[19] PD v Australian Red Cross Society (New South Wales Division) (1993) 30 NSWLR 376.
[20] PD v Australian Red Cross Society (New South Wales Division) (1993) 30 NSWLR 376, 380.
[21] PD v Australian Red Cross Society (New South Wales Division) (1993) 30 NSWLR 376, 382. See also Afflito v Commonwealth [2003] NSWSC 276; NJ v Australian Red Cross Society [1996] VSC 299.
When approaching the balancing exercise in the present case, it is important to recall that interviewees were not entitled to an absolute assurance of confidentiality. Further, in contrast to the Red Cross, the State did not tender any evidence to substantiate Dr Koehler’s claim that an order for disclosure would make it more difficult to collect information in the future from other persons.
The denial of the redacted material could work a substantial injustice to Mr Milisits. He should have the opportunity to be able to contact and communicate with the persons on whose statements the State proposes to rely on to make out its defence, so as to be able to test and evaluate that information and properly understand all the circumstances of the “epidemiological investigation” carried out by the State.
The assessment of the injustice occasioned by the denial of access to the respondents to the survey should be undertaken in the context of the fact that the State accepts that there was no trace of salmonella found in any Vili’s product or its manufacturing facility.
In my view, the redacted information is not only relevant for the purposes of discovery, but it is also appropriate to describe the material as relevant and significant to the preparation of Mr Milisits’ case to meet the pleaded defences. One of the purposes of defamation proceedings is the public vindication of a plaintiff’s reputation. The Judge under appeal characterised the litigation as being concerned with the vindication of the commercial reputation of Mr Milisits. It is also to be borne in mind that Mr Milisits’ business is conducted under his first name and as such his personal reputation may also be in question and, as a consequence, the subject of possible vindication.
In my view, the balancing exercise favours the disclosure of the redacted material.
Conclusion
I would allow the appeal, set aside the order made by the Judge under appeal and reinstate the order made by the Master. I would hear the parties as to the terms of the consequential orders to be made and as to costs.
PEEK J. I agree with the orders proposed by Gray J and with his reasons.
NICHOLSON J. I agree that the appeal should be allowed and the order of the Master reinstated for the reasons given by Gray J. I add the following observation.
The blood donation cases discussed by Gray J,[22] in my view, raise considerations of an order of difficulty greater than those that arise in the present case. Nevertheless, they are simply illustrations of the application of the general principles concerning public interest immunity, as traversed in Gray J’s judgment, to their respective, quite testing, fact situations.
[22] BC v Australian Red Cross Society [1991] VSC 68; PD v Australian Red Cross Society (New South Wales Division) (1993) 30 NSWLR 376.
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