Murphy v State of Victoria (No 3)

[2014] VSC 624

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI  2014 01911

ANTHONY MURPHY

Plaintiff

v  

STATE OF VICTORIA

LINKING MELBOURNE AUTHORITY

First Defendant

Second Defendant

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JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 OCTOBER, 5 and 12 DECEMBER 2014
DATE OF JUDGMENT:	15 DECEMBER 2014
CASE MAY BE CITED AS:	MURPHY v STATE OF VICTORIA (No 3)
MEDIUM NEUTRAL CITATION:	[2014] VSC 624

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Practice and Procedure ‑ Notices to produce ‑ Claim for public interest immunity ‑ Production and inspection initially objected to – State election – Change of government – Agreement between the parties – Executive government seeks leave to withdraw its claim for public interest immunity – Evidence Act 2008 (Vic), ss 9, 130 ‑ Supreme Court (General Civil Procedure) Rules 2005 (Vic), rr 29.10, 35.08.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr JWK Burnside QC (22 October 2014) with Ms MJ Richards SC and Mr MLL Albert (22 October 2014) Ms S Gory (5, 12 November 2014)	Fitzroy Legal Service Inc
For the First Defendant	Mr MK Moshinsky QC with Mr LT Brown	Victorian Government Solicitor
For the Second Defendant	Mr PW Collinson QC (22 October 2014) with Mr RA Heath	Clayton Utz

HIS HONOUR:

A.       Introduction

1. The issues before the court are unusual.  Senior counsel for the first defendant, the State of Victoria (“the State”), described the circumstances as unprecedented.  All counsel before the court adopted this description.

1. The plaintiff, Anthony Murphy (“Murphy”), served 4 notices to produce in this proceeding.  Two notices were served on the State dated 13 June 2014 (“the First State Notice”) and 8 October 2014 (“the Second State Notice”).  Two notices were served on the second defendant, Linking Melbourne Authority (“the Authority”), dated 13 June 2014 (“the First Authority Notice”) and 8 October 2014 (“the Second Authority Notice”). (Collectively, “the Notices to Produce”.)

1. The Notices to Produce were served by Murphy, purportedly pursuant to rr 29.10 and 35.08 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

1. On each of 24 June 2014 and 13 October 2014, the State filed a summons, seeking, amongst other things, to make a claim for public interest immunity in relation to some of the documents the subject of the First State Notice and the Second State Notice.  Equally, on each of 24 June 2014 and 14 October 2014, the Authority filed a summons raising, amongst other things, the same issues concerning public interest immunity.  (Collectively, “the Summonses”.)

1. Numerous documents the subject of the Notices to Produce did not require any ruling from the court.  The parties had engaged in extensive negotiations, the result of which was that either the Notices to Produce were not pressed with respect to some documents, or relevant documents were the subject of an agreement for production and inspection either openly or on a confidential basis. 

1. As to the documents not the subject of any agreement, the State and the Authority, with 1 exception, objected to production and inspection on the grounds of public interest immunity.  As to the exception, the State objected on the ground that the document in question is not relevant. 

B.       The conduct of the parties upon and after the return of the Summonses

1. The issues concerning the claim for public interest immunity were fully argued on 22 October 2014.  A large body of evidence was relied upon by the State and the Authority.  The court was also referred to a considerable number of authorities.  In short, the State and the Authority unconditionally submitted the public interest required that the claim for public interest immunity be upheld in relation to all documents the subject of the claim.

1. On 22 October 2014, I was informed that the incumbent government would go into caretaker mode on 4 November 2014. The State election was to be held on 29 November 2014.  By reason of such matters, I was also informed that if I were to deliver reasons for decision before 29 November 2014, the State would be unable to get instructions as to the conduct of this proceeding from 4 November 2014 until after the election was held and the result was known.

1. Accordingly, I considered it prudent to refrain from delivering any judgment until after 29 November 2014.

1. The election was duly held, which resulted in a change of government.  The now premier of Victoria, Daniel Andrews (“the Premier”)[1] made a number of public statements, including statements made on 2 December 2014 that were directly relevant to the issues before the court.

   [1]The Premier was sworn into office on 4 December 2014.

1. In short, the Premier stated an intention to release to the public certain documents which included the documents (or at least some of them) the subject of the claim for public interest immunity in this proceeding.

1. As a result of these statements, the court, on its own motion, listed the matter for further hearing on 5 December 2014.

1. On 5 December 2014, the State requested that the court presently refrain from delivering a judgment on the issues ventilated on 22 October 2014.  The State sought some further time to obtain instructions given that the new government had only just been sworn in.  With the consent of all parties, the hearing was adjourned to 12 December 2014 at 10 am.

1. On 11 December 2014, the court was contacted by email.  It was suggested that the matter could not be dealt with properly at 10 am the following day.  It was stated in the email that as there were still “a number of steps that need[ed] to be taken before the State [could] reach a position on the documents in dispute (due to the conventions surrounding access by one government to cabinet documents of another government of a different political party)”.  Accordingly, the further hearing was relisted for 4 pm on 12 December 2014.

1. On the afternoon of 12 December 2014, the court was told that the parties had reached agreement on all issues arising from the Summonses.  Both the State and the Authority sought the leave of the court to withdraw the Summonses and not to proceed with any claim for public interest immunity.  Murphy consented to this course being adopted.

C.       The issues in the proceeding

1. Although the pleadings have not been finalised,[2] they raise 4 distinct questions. These questions arise from allegations that, in either July or October 2013, the State and the Authority made certain representations (“the Representations”) concerning a project to construct a 6 kilometre roadway, being the eastern section of a link from the existing Eastern Freeway to the existing City Link, as the first stage of an 18 kilometre project, known as the “East West Link”. It is alleged that, by making the Representations, each of the State and the Authority engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

   [2]Recent events will necessarily require Murphy to amend some aspects of the pleading of his claim in due course.

1. The 4 questions that are common to each of the Representations are, if the defendants made the Representations:

(1)Were they made as part of carrying on a business by the defendants for the purposes of the Australian Consumer Law?

(2)Was the defendants’ conduct in trade or commerce for the purposes of s 18 of the Australian Consumer Law?

(3)Were the Representations misleading or deceptive or likely to mislead or deceive for the purposes of s 18 of the Australian Consumer Law?

(4)If each of the above questions is answered in the affirmative, to what relief is Murphy entitled?

1. The current statement of claim of Murphy includes the following allegations:

5.In or about June 2013 the State and/or the Authority developed a detailed business case for the Project.

PARTICULARS

Save to say that the detailed business case is summarised in the short form business case referred to in paragraph 6, [Murphy] is unable to provide further particulars of the detailed business case until after discovery.

6.(a)  In or about July 2013 the State and/or the Authority published a short form business case for the Project ("the Business Case"), which was a summary of the detailed business case referred to in paragraph 5.

…

(b)The publication referred to in (a) was, inter alia, in furtherance of obtaining community engagement and support for the Project, being a matter provided for in the detailed business case referred to in paragraph 5 above.

…

7.        The Business Case states that the Project comprises:

(a)a new tolled motorway link between Hoddle Street and City Link (mainly in tunnel) ("the Tollway");

(b)       other elements ("the Other Elements"), including:

(i)access via City Link to Ml, Port of Melbourne, Melbourne Airport and M80 /Hume Freeway;

(ii)Eastern Freeway upgrading between Hoddle Street and possibly to Tram Road and managed motorways between Hoddle Street and possibly Springvale Road; and

(iii)CBD-oriented public transport enhancements to the north of the CBD.

8.        The Business Case states:

(a)the Tollway will be procured and delivered via an "Availability Payment Public Private Partnership (PPP) model", with PPP delivery or project assets and services and with tolls retained by the State;

(b)the Other Elements will be procured separately by traditional methods;

(c)       the total cost of the Project is $6-8 billion;

(d)under the PPP model, the State receives the toll revenue streams, bearing the full cost (reduced toll revenues) or full benefit (increased toll revenues) that may result from fluctuating traffic volumes;

(e)a substantial government funding contribution is assumed, and will be sized appropriately to address the high cost of private sector debt while preserving the risk allocation and financial incentive structures that are central to the PPP model;

(f)overall direction and oversight for the Project will be provided by a Steering Committee chaired by the Secretary Department of Transport, Planning and Local Infrastructure;

(g)the Authority will manage the PPP procurement of the Tollway;

(h)the Project will include commercial negotiations with Transurban for access via City Link;

(i)as a classified High Value/High Risk project, the Project is subject to the State's Department of Treasury and Finance's Gateway review process;

(j)the Tollway has completed the first two stages/ gates of the Gateway review process with funding approved in the recent Victorian State Budget.

1. Before the State filed its defence, it made an application to the court to obtain orders permitting the State to file a limited defence.  This application was supported by an affidavit sworn by Alison O'Brien ("the O'Brien Affidavit").  The O'Brien Affidavit referred to certain documents in seeking to establish it was appropriate for the State to refrain from filing a defence responding to all the allegations made by Murphy.  The application was unsuccessful.  The State and the Authority duly filed defences.

1. In its defence, the State referred to a number of documents.  The manner in which these documents were referred to is material.  Accordingly, it is convenient to set out the particular allegations:

3C.     It says further that:

(a)pursuant to the “Investment Lifecycle and High Value/High Risk Guidelines” issued by the Department of Treasury and Finance of the Victorian Government at the relevant time, all State Government investment proposals over $5 million seeking budget funding were required to submit a detailed business case in accordance with the Guidelines;

(b)in the 2012/2013 State Budget tabled on 1 May 2012, funding was allocated for preparation of a detailed business case in relation to the East West Link Project; 

…

(e)from about February 2012 to September 2013, under the oversight of a Steering Committee and relevant Cabinet Committees, and with the assistance of inter alia the [Authority], the Department prepared the detailed business case; 

(f)in May and June 2013, the Department prepared the Short Form Business Case, as a summary of the detailed business case, for the purpose of submission to Infrastructure Australia[3] in order to attract Commonwealth Government funding for the development of what is described in the Executive Summary from the Short Form Business Case as “East West Link Stage One”;

[3]Infrastructure Australia consists of members appointed under the Infrastructure Australia Act2008 (Cth).

(g)On 28 June 2013, the Department provided a copy of the Short Form Business Case, together with completed Infrastructure Australia templates, to Infrastructure Australia, for this purpose; 

(h)On 1 July 2013:

(i)the [Authority] published the Executive Summary from the Short Form Business Case on its website; 

(ii)a media release issued by the premier dated 1 July 2013 entitled “Benefits continue to flow from Melbourne’s East West Link Tunnel” referred to the publication of the Executive Summary from the Short Form of Business Case on the website of the [Authority];  and

…

3E.In the premises of paragraphs 3B-3D above and paragraphs 4-19, 21, 25, 29 and 33 below, it says that:

(a)in publishing each of the Executive Summary from the Short Form Business Case, the [“East West Link – Eastern Section:  Comprehensive Impact Statement”] and the Transport Summary Report, the State:

(i)was not carrying on a business for the purposes of the [Australian Consumer Law];  and

(ii)was not engaged in trade or commerce for the purposes of the [Australian Consumer Law];  and

(b)accordingly, the [Australian Consumer Law] does not apply to the State in respect of [Murphy]’s claims. 

…

8.Subject to reference to the full terms and effect of the Executive Summary from the Short Form Business Case, it admits paragraph 8.

…

13.As to paragraph 13:

(a)it says that on or about 31 October 2013, the State, through the [Authority], released a “Request for Proposal” to the shortlisted tenderers;  and

…

19.As to paragraph 19:

(a)to the extent that it is alleged that, in engaging in the conduct pleaded in paragraphs 4-18 of the statement of claim (“the Alleged Conduct”), the State has carried on a business:

(i)it refers to … paragraph 19 of the defence of the [Authority] as to the Alleged Conduct of the State (through the [Authority]);

(ii)it refers to paragraphs 3A-18 above and 21, 25, 29 and 33 below and otherwise denies paragraph 19, as to the Alleged Conduct of the State (otherwise than through the [Authority]);

…

24.It denies paragraph 24 and says further that it had reasonable grounds for making the [benefit cost ratio] representation by reason that:

(a)a formal cost benefit analysis undertaken as part of the production of the detailed business case showed a cost benefit ratio of 1.4; 

(b)the formal cost benefit analysis was the product of detailed analysis over an extended period by independent experts of high reputation upon whom the State was entitled to rely; and

PARTICULARS

(i)The formal cost benefit analysis was undertaken by PwC over the period from about April 2012 to September 2013.

…

(c)the production of the detailed business case, including the formal cost benefit analysis, was subject to a pre-existing process mandated by the State directed to the production of robust business cases. 

PARTICULARS

…

Further grounds and particulars may be provided following final determination of the State’s public interest immunity claim with respect to inter alia the Short Form Business Case and the detailed business case.

(The relevant documents referred to in the State’s defence are in bold.)

1. As may be seen from the particulars to paragraph 24(c) of the State’s defence, the State did not seek to rely upon the specific contents of the documents the subject of the claim for public interest immunity beyond what had already been published (and was therefore already in the public domain).

1. I was informed by senior counsel for the State on 22 October 2014 that there was no intention of the State to refer to the contents of the documents identified in its defence at trial if the claim for public interest immunity were upheld; rather, so I was told at the time, the State intended to keep the relevant documents confidential at all times.  The court was further informed on 22 October 2014 that, if the consequence of this intention was that the State could not properly make out those parts of the defence referring to the documents in question, then the State would forego that aspect of its defence rather than disclose the contents of the documents.

1. The Authority's defence was also relied on by Murphy for the purposes of seeking to establish an entitlement to production and inspection of the documents.

1. It is unnecessary to set out the detail of the Authority's defence. Similar to the position adopted by the State, the Authority’s defence expressly referred to some of the documents the subject of the Notices to Produce. In addition, in paragraph 19 of its defence, the Authority made extensive allegations as to why it contended the Authority does not carry on a business for the purposes of the Australian Consumer Law. Those allegations were adopted by the State in its defence.[4]

   [4]            The State’s defence, par 19(a)(i): see par 20 above.

D.       Documents the subject of the Notices to Produce

1. Pursuant to the First State Notice, the following documents were sought by Murphy:

1.The detailed business case referred to in paragraph 5(c) of the O’Brien Affidavit. 

2.The “Short Form Business Case” referred to in paragraph 5(d) of the O’Brien Affidavit.

3.The drafts of the detailed business case and short form business case referred to in paragraph 8 of the O’Brien Affidavit.

4.(i)        The documents (including the completed Infrastructure [Australia] templates and any related correspondence) sent or provided to Infrastructure Australia on or about 23 June 2013, referred to in paragraph 5(e) of the O’Brien Affidavit.

(ii)Any correspondence (including attachments) since 28 June 2013 from or to Infrastructure Australia in relation to the Short Form Business Case or the request for Commonwealth funding.

5.The submission of the State, through the [Authority], to Infrastructure Australia referred to in paragraph 3B(e) of the proposed defence.

…

10.The “Request for Proposal” to each of the 3 shortlisted tenderers referred to in paragraph 13(a) of the proposed defence.

…

12.The documents recording the details of the “Availability Payment Public Private (PPP) model, with PPP delivery of project assets and services with tolls retained by the State” described in sub-paragraphs 8(a), 8(d) and 8(g) of the statement of claim and admitted in paragraph 8 of the proposed defence. 

1. Pursuant to the Second State Notice, the following documents were sought by Murphy:

1.The detailed business case referred to in paragraphs 3C(e) and 24(a) and (c) of the [State]’s defence.

2.The short form business case referred to in paragraphs 3C(f) and (g) of the [State]’s defence.

3.The “business case” provided to the Commonwealth Department of Infrastructure and Regional Development on 31 October 2013 as described in paragraph 27 of the affidavit of Lynette Margaret O’Connell dated 24 June 2014.

4.The documents recording the details of the “Availability Payment Public Private (PPP) model, with PPP delivery of project assets and services with tolls retained by the State” described in sub-paragraphs 8(a), 8(d) and 8(g) of the further amended statement of claim and admitted in paragraph 8 of the [State]’s defence.

5.The “formal cost benefit analysis” referred to at paragraphs 24(a) and (b) and 28(a) and (b) of the [State]’s defence.

6.The contract entered into by or on behalf of the [State] with the preferred bidder (East West Connect) for the East West Link (Eastern Section) Project (Project) on or about 29 September 2014.

7.Any document comprising or evidencing an agreement, arrangement or understanding between the [State] and East West Connect, or any person associated with East West Connect or who is a sub-contractor of East West Connect, providing for payment to be made by or on behalf of the [State] in the event that the Project does not proceed.

1. Pursuant to the First Authority Notice, the following documents were sought by Murphy:

7.The “documentation” and the “Business Case” referred to in sub-paragraphs 2C(b) and 2C(c) of the proposed defence. 

1. Pursuant to the Second Authority Notice, the following documents were sought by Murphy:

1.The short form business case referred to in paragraph 2B(j) of the [Authority’s] defence. 

…

5.Any document comprising or evidencing an agreement, arrangement or understanding between the [State] and East West Connect, or any person associated with East West Connect or who is a sub-contractor of East West Connect, providing for payment to be made by or on behalf of the [State] in the event that the Project does not proceed. 

E.        Relevant principles

E.1General principles applicable to a claim for public interest immunity      

1. It is a long established doctrine of the common law that governments may prevent production and inspection of documents of the executive arm of government if a claim for public interest immunity is properly made.  Under the common law, a court was required to weigh the competing public interests of:  (1) the protection of the executive government from the harm which might be caused from disclosure; and (2) the interests of ensuring that justice can be effectively administered.[5] 

   [5]Sankey v Whitlam (1978) 142 CLR 1, 38.7–39.3 (Gibbs ACJ).

1. This approach to the competing public interests is now encapsulated in the statutory regime established under the Evidence Act 2008 (Vic). Relevantly, s 130 provides:

(1)If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence. 

…

(3)In deciding whether to give such a direction, the court may inform itself in any way it thinks fit. 

(4)Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:

…

(b)damage relations between the Commonwealth and a State or between 2 or more States;  or

…

(f)prejudice the proper functioning of the government of the Commonwealth or a State. 

(5)Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters:

(a)the importance of the information or the document in the proceeding;

…

(c)the nature of the … cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;

(d)the likely effect of adducing evidence of the information or document, and the means available to limit its publication;

(e)whether the substance of the information or document has already been published;

…

1. Section 9 of the Evidence Act provides that that Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding except so far as the Evidence Act provides otherwise expressly or by necessary intendment.[6] The content and operation of s 130 of the Evidence Act is informed by the common law.[7] 

   [6]See also Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, 632 [110] (Heydon J).

   [7]Tatts Group Ltd v State of Victoria [2013] VSC 301, [26] (Sifris J), citing Eastman v The Queen (1997) 76 FCR 9, 63 (von Doussa, O’Loughlin and Cooper JJ).

1. The common law recognised a “rough but accepted”[8] classification of documents the subject of a public interest immunity claim.  Broadly, public interest immunity claims could be divided into claims based upon the “class” of the document and claims based upon the “content” of the document.  In relation to the former claims, the following passage from Sankey v Whitlam is instructive:[9]

[A]lthough 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… 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. 

(Emphasis added.)

[8]Burmah Oil Co Ltd v Bank of England [1980] AC 1090, 1111F (Lord Wilberforce), cited in The Commonwealth v Northern Land Council (1993) 176 CLR 604, 616.4 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ).

[9](1978) 142 CLR 1, 43.2 (Gibbs ACJ).

1. The documents previously the subject of a claim of “class” public interest immunity in this case were cabinet documents.  The seminal judgment in Australia on this issue is that of Menzies J in Lanyon Pty Ltd v The Commonwealth.[10]In that case, the following observation was made:[11]

[T]he governmental process directed to obtaining a cabinet decision upon a matter of policy and cabinet’s decision upon that matter should not, in the public interest, be disclosed by the production of cabinet papers including what I would describe as papers which have been brought into existence within the governmental organizations for the purpose of preparing a submission to cabinet.  Such papers belong to a class of documents that, in my opinion, are of a nature that ought not to be examined by the Court, except, it may be, in very special circumstances.

[10](1974) 129 CLR 650.

[11]At 653.5.  See also Tatts Group Ltd v State of Victoria [2013] VSC 301, [37]-[43] (Sifris J).

1. It was accepted by all the parties that any determination by the court of a claim to public interest immunity involves 3 steps:

(1)A determination of whether there is a risk that production would be injurious to the public interest. 

(2)A determination of whether the public interest in the administration of justice requires disclosure.

(3)A balancing exercise as to which of the competing interests ought to prevail.

As to the second step, the public interest in the administration of justice will only require disclosure if the documents contain “material evidence”.[12]  It is only if the first 2 steps are answered in the affirmative that the court engages in the balancing exercise.[13] 

[12]Alister v The Queen (1984) 154 CLR 404, 412.7 (Gibbs CJ).

[13]Ibid.

1. It was common ground that in any claim for public interest immunity, the moving party bore the onus of establishing production would be injurious to the public, but, once this was established, and assuming the second step were satisfied,[14] the scales must tip decisively in favour of disclosure before production and inspection will be ordered.[15] 

   [14]See par 34(2) above.

   [15]Burmah Oil Co Ltd v Bank of England [1980] AC 1090, 1127A (Lord Edmund-Davies), citing Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1974] AC 405, 434F (Lord Cross).

1. It was accepted by Murphy that, if the documents in question were properly described as cabinet documents, then an applicant seeking production and inspection bore a heavy burden to overcome a claim for public interest immunity.  As was stated by the High Court in The Commonwealth v Northern Land Council:[16]

Indeed, for our part we doubt whether the disclosure of the records of Cabinet deliberations upon matters which remain current or controversial would ever be warranted in civil proceedings.  The public interest in avoiding serious damage to the proper working of government at the highest level must prevail over the interests of a litigant seeking to vindicate private rights.[17] 

[16](1993) 176 CLR 604, 618.5 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ).

[17]It is unnecessary to consider whether, or the extent to which, this general statement is applicable to circumstances where the government itself is seeking to enforce its commercial dealings:  see, for example, State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60, [55] (Allsop P, with whom Hodgson JA and Sackville AJA agreed).

1. The documents within this class may go beyond documents recording the actual deliberations of cabinet.[18]  As to what constitutes documents properly the subject of a claim for public interest immunity, as being within the “Cabinet class”, Sifris J stated as follows in Tatts Group Ltd v State of Victoria.[19]

   [18]Spencer v The Commonwealth (2012) 206 FCR 309, 320 [32] (Keane CJ, Dowsett and Jagot JJ).

   [19][2013] VSC 301, [39]. As to the reference to committees of cabinet in this passage, see also State of Victoria v Seal Rocks Victoria (Australia) Pty Ltd (No 2) [2001] VSC 249, [21] (Byrne J).

Documents subject to a Cabinet class claim generally comprise Cabinet minutes or other records of Cabinet discussions (the reference to Cabinet including committees of Cabinet) and may include other documents relating to the framing of government policy at a high level.  The documents may include:

(a)papers prepared as submissions to Cabinet; and

(b)documents which relate to the framing of government policy at a high level.

(Citations omitted.)

1. Another relevant matter for the court to consider is the extent to which the topic or topics the subject of the claim for public interest immunity remain current and controversial.  In State of Victoria v Brazel,[20] the following was stated:[21]

Obviously, if the information is out-of-date, the risk of injury to the public interest is likely to be much reduced, if not non-existent. The need for secrecy may be short-lived or long-lasting. Everything depends on the subject-matter and content of the information in question.

(Emphasis added.)

[20](2008) 19 VR 553.

[21]At 568 [49] (Maxwell P, Buchanan and Vincent JJA), citing Sankey v Whitam (1978) 142 CLR 1, 97, 98, 99-100 (Mason J); The Commonwealth v Northern Land Council (1993) 176 CLR 604, 617 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ).

1. There was no issue in this case that the East West Link project is currently controversial.[22]

   [22]This evidence was led by the executive director of Policy and Cabinet Group, Department of Premier and Cabinet and was not the subject of any challenge or contradictory evidence.

1. Also in State of Victoria v Brazel, the Court of Appeal made it plain that claims for public interest immunity need to be scrutinised with care by the courts.  Although that case concerned a "contents" claim for immunity rather than a “class” claim, the following passage is relevant to claims for public interest immunity generally:[23]

For these reasons, we consider that the State has failed to satisfy the threshold test – of potential damage to the public interest – in respect of any of the  disputed portions of the report.  No occasion arises therefore to undertake the balancing exercise.

This conclusion – and the analysis on which it is based – should provide a salutary lesson for any government official or agency contemplating a claim for public interest immunity.  Since immunity will not be lightly conferred, it should not be lightly claimed.  Contrary to the assumption on which the State appears to have acted in this interlocutory litigation, it is never enough merely to assert – as if it were self-evident – that disclosure of the information in question will harm some particular aspect of the public interest.  The claim for immunity must be articulated with rigour and precision, and supported by evidence demonstrating the currency and sensitivity of the information, so as to constitute a compelling case for secrecy.  Anything less will be unlikely to suffice.

(Emphasis added.)

[23]At 574-575 [67]-[68].  See also Ahmet v Chief Commissioner of Police [2014] VSCA 265, [22] (Nettle JA and Sloss AJA).

1. That said, the mere fact that the government claims that disclosure of the document would be harmful must be given due weight.[24]

   [24]New South Wales v Ryan (1998) 101 LGERA 246, 252.8 (Burchett, Hill and Madgwick JJ), referred to with approval in The Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31, 39 [27] (Black CJ, Tamberlin and Sundberg JJ).

1. In contrast to a "contents" claim for immunity,[25] where a "class" claim is made, ordinarily the court should not inspect the documents if those documents clearly fall into a class which attracts immunity.[26]

   [25]See, for example, Ahmet v Chief Commissioner of Police [2014] VSCA 265, [32] (Nettle JA and Sloss AJA).

   [26]The Commonwealth v Northern Land Council (1993) 176 CLR 604, 617.7 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ).

E.2Principles applicable when no claim for public interest immunity is made      

1. The executive arm of government is not obliged to make a claim for public interest immunity merely because such a claim is arguable.[27]  However, once documents may become part of the court processes,[28] including processes involving compulsory production, the court has a duty to prevent the production and disclosure of documents if such production or disclosure would be contrary to the public interest.[29]  This duty rests with the court irrespective of whether or not a claim for public interest immunity is made.[30]  As was succinctly stated by Beazley JA in R v Young: [31]

Three specific rules have developed governing the application of the principle.  First, the immunity cannot be waived; secondly, it is not dependent on a claim being made by the parties; thirdly, secondary evidence cannot be given of evidence the subject of the claim.  The rules themselves are the defining difference between immunity and privilege.

[27]RP Data Ltd v Western Australian Land Information Authority (2010) 188 FCR 378, 388 [55] (Barker J), referring to Sankey v Whitlam (1978) 142 CLR 1, 51-52 (Stephen J).

[28]Which processes may include the governing of processes in proceedings conducted outside the jurisdiction of the court: see State of Victoria v Seal Rocks Victoria (Australia) Pty Ltd (2001) 3 VR 1, 6-7 [16]-[19] (Ormiston JA, with whom Phillips and Buchanan JJA agreed); see also 8 [21] (Phillips JA).

[29]Sankey v Whitlam (1978) 142 CLR 1, 38.9, 44.4 (Gibbs ACJ).

[30]Australian Securities Commission v Zarro (No 2) (1992) 34 FCR 427, 436.8 (Drummond J). See also par 47 below.

[31](1999) 46 NSWLR 681, 704 [126].

1. That said, the approach of the court is likely to be significantly affected by any opinion expressed by the responsible minister to the effect that production and disclosure of the document or documents in question would not be contrary to the public interest.  As was stated by Gibbs ACJ in Sankey v Whitlam: [32]

The court must…intervene if it appears that the public interest requires the document to be protected from disclosure.  However it is very different if a Minister has considered the question and decided that no objection should be taken.  In those circumstances it would be most exceptional for the court to intervene.  No less respect is due to the opinion of a Minister who decides that the public interest would not be harmed by the production of the document than to that of a Minister who considers that the document ought not to be produced.

(Emphasis added.)

[32](1978) 142 CLR 1, 44.9-45.2.

1. Although somewhat lengthy, the following passage from R v Chief Constable of West Midlands Police, Ex parte Wiley makes a number of points particularly relevant to the issues at hand:[33]

   [33][1995] 1 AC 274, 296E-297B (Lord Woolf, with whom Lords Templeman, Bridge, Slynn and Lloyd agreed).

If a Secretary of State on behalf of his department as opposed to any ordinary litigant concludes that any public interest in documents being withheld from production is outweighed by the public interest in the documents being available for purposes of litigation, it is difficult to conceive that unless the documents do not relate to an area for which the Secretary of State was responsible, the court would feel it appropriate to come to any different conclusion from that of the Secretary of State. The position would be the same if the Attorney-General was of the opinion that the documents should be disclosed. It should be remembered that the principle which was established in Conway v Rimmer is that it is the courts which should have the final responsibility for deciding when both a contents and a class claim to immunity should be upheld. The principle was not that it was for the courts to impose immunity where, after due consideration, no immunity was claimed by the appropriate authority. What was inherent in the reasoning of the House in that case was that because of the conflict which could exist between the two aspects of the public interest involved, the courts, which have final responsibility for upholding the rule of law, must equally have final responsibility for deciding what evidence should be available to the courts of law in order to enable them to do justice. As far as contents of documents are concerned, I cannot conceive that their Lordships in Conway v Rimmer would have anticipated that their decision could be used, except in the most exceptional circumstances, so that a department of state was prevented by the courts from disclosing documents which it considered it was appropriate to disclose. 

(Citation omitted, emphasis added.)

1. On this topic, reference must also be made to the decision of the Victorian Court of Appeal in State of Victoria v Seal Rocks Victoria (Australia) Pty Ltd.[34]  It was suggested that observations made in this case might be inconsistent with the 2 passages set out immediately above.[35] 

   [34](2001) 3 VR 1.

   [35]This was not advanced as a positive submission, but rather pursuant to counsel’s duty to the court to bring to the court’s attention any authority which might be thought could be binding in relation to the issues before the court.

1. The case involved a determination of whether the Supreme Court of Victoria had power to resolve an issue of public interest immunity which had arisen in an arbitration under the Commercial Arbitration Act 1984 (Vic). The Court of Appeal held that the power existed. Accordingly, the following was strictly obiter dicta:[36]

   [36]At 6-7 [16]-[17] (Ormiston JA, with whom Phillips and Buchanan JJA agreed.).

Whatever might be argued in relation to other claims for privilege by parties, the present claim was of a different order. The right of the Crown or government to assert that cabinet documents and the like are immune from production is a matter of high public policy. It is not the subject of waiver or acquiescence: it cannot, for example, be resolved by decision of the government of the day.  It is public policy in the strictest sense which requires that documents of this kind be immune from public disclosure generally or even disclosure for the limited purposes of litigation or arbitration…

In my opinion, therefore, public interest immunity in a document or other communication is a right by way of an immunity or a privilege which enures in the body politic and indeed in the nation (or relevant polity) as a whole, and not merely in the executive, being designed to protect the operation of the instruments of government at the highest level and for the benefit of the public in general, subject only to a court's reaching a conclusion to the contrary on sound grounds that no other public interest, especially in the administration of justice, should prevail in the particular circumstances. It follows, as has been held on numerous occasions, that the making of a claim for this immunity by the Crown, or by any other party to the proceeding for that matter, is not necessary, for it is the court's duty to consider the possible application of the immunity, whenever it may appear to arise, subject only to satisfying itself, after appropriate argument, that it does apply and that any relevant countervailing factors ought not to deny the immunity.

(Citations omitted, emphasis added.)

1. Although the language used in the above passage is more strident in its statement of the role of the court, it is not, in my view, inconsistent with the 2 earlier passages quoted above.

1. In short, whatever the position adopted by the executive arm of government, once the court is properly seized of a matter, it must consider the public interest in whether or not documents ought to be the subject of public interest immunity.  Although the court’s duty always remains, a position adopted by the responsible minister or ministers that the public interest would not be harmed, or would be served, by disclosure of the documents in question will weigh very heavily in favour of the court determining that the disclosure of the documents ought not be impeded.

F.        The evidence relied upon on 22 October 2014

1. The State filed numerous affidavits of 6 deponents in support of its claim for public interest immunity.  The Authority filed affidavits sworn by a partner of the law firm acting for the Authority in this proceeding.

1. Murphy objected to the evidence relied upon by the State insofar as it contained opinion evidence as to the effect of any release of the relevant documents.  By reason of the position now adopted by the parties, it is unnecessary to rule on this issue.  Further, because of the changed position, I do not propose to refer to all the evidence specifically.  I will confine a summary of the evidence to the 3 key deponents.  This evidence demonstrates the basis upon which the claim for public interest immunity was made in relation to 18 documents.

1. The principal affidavit relied upon by the State was an affidavit sworn by Dr Jonathan Spear, the executive director, Policy and Cabinet Group of the Department of Premier and Cabinet (“Spear”).  Spear is a solicitor who ceased private practice in 2004.  From 2004 onwards, he has held senior positions in various government departments.  Relevantly, in 2011 he was appointed director of Strategy and Innovation with the Department of Premier and Cabinet.  In February 2012, Spear was appointed director of the legal branch of that department.  In August 2013, Spear was appointed acting executive director and in June 2014 the position of executive director became permanent.

1. In his role as executive director, Spear advises the premier of the day and the ministers of the executive about matters that are considered by cabinet and its committees.  This role has involved Spear attending numerous meetings of committees of cabinet.  On such occasions, the department is responsible for giving advice to the chair of the committee (a minister appointed by cabinet for that purpose) and to perform secretariat functions for the committee.

1. Spear's responsibilities include supervision and direction of the cabinet secretariat, which is a branch of the Policy and Cabinet Group within the Department of Premier and Cabinet.  Further details as to the role and responsibility in this regard are set out in his affidavit.

1. Spear deposed that cabinet or cabinet committee submissions are formal documents prepared by the department on the instruction of a minister or cabinet for the purpose of submission by the relevant minister for consideration by cabinet or its committees.  Such documents are signed by the relevant minister or department secretary and presented by the relevant minister or secretary to cabinet or the relevant committee of cabinet.  These submissions and their attached documents “form the core basis of the deliberations of cabinet and its committees”.

1. Spear also deposed that official cabinet documents include agendas and records of the decisions made by cabinet or its committees in the form of minutes.  These signed minutes are kept with the official cabinet documents and, during the term of the incumbent government, are retained by the cabinet secretariat.

1. As a result of the service of the Notices to Produce, Spear caused a search to be made of records held by the cabinet secretariat.  Ten documents were located that responded to the descriptions in the First State Notice and the Second State Notice.  Those documents were as follows:

(1)       Business case.

(2)       Business case.

(3)       Short form business case.

(4)       Short form business case.

(5)       Infrastructure Australia templates.

(6)       Request for proposal documents.

(7)Document recording details of the Availability Payment Public Private (PPP) model.

(8)Document recording details of the Availability Payment Public Private (PPP) model.

(9)Document recording details of the Availability Payment Public Private (PPP) model.

(10)The Authority recommendations to the State in respect of the expressions of interest.

1. Spear deposed that the documents were given generic descriptions to prevent revealing matters that were the subject of deliberation by a committee of cabinet.

1. Spear identified 3 cabinet committees that were involved in consideration of the 10 documents referred to above; namely, the budget committee, the first project committee and the second project committee.  Having reviewed the agenda, relevant submission and attachments of the budget committee meeting held on 31 October 2011, Spear recorded that the budget committee approved funding for the preparation of “a business case in relation to the East West Link project”.  He further deposed that documents (1) and (2) referred to above fell within this description.

1. Spear then referred to a series of meetings of the cabinet committees.  These meetings were held on 11 April 2012, 22 June 2012, 13 August 2012, 12 October 2012 and 26 March 2013.  In relation to each of the 10 documents referred to above, Spear notes that the documents are, with the exception of document (6), all marked “Cabinet in Confidence”.

1. Having referred to each of the 10 documents individually, Spear deposed that each of those documents was considered by a committee of cabinet as part of its deliberations and, if they were disclosed, the subject of a cabinet committee's deliberations would be disclosed.  Spear also said that, having reviewed the documents, it was apparent that the project was closely monitored and directed by the cabinet committees.

1. Spear then expressed his opinion about the effect of the release of any of the 10 documents.  In substance, Spear expressed the view that full or partial disclosure of the documents either to the public generally, or only to Murphy, even if released subject to a confidentiality regime, would prejudice the proper functioning of government.  This view was expressed on the basis that the “necessary confidentiality of the Cabinet process would be breached by revealing matters that were the subject of deliberation by Cabinet committees”.  Spear suggested that if disclosure were made in any of the forms referred to above:

... future Cabinet and Cabinet committee deliberations might be muted or impeded.  This is because Ministers or Cabinet might be conscious that Cabinet's deliberations might not be kept confidential or it might direct that material of this nature not be prepared or the person preparing documents of a similar type may present the information in such a way as to minimise controversy in the event that the document is revealed.  Therefore, Cabinet and Cabinet committees might not have access to full and frank advice and information, stultifying their deliberations.

Similar views were expressed in relation to the draft documents prepared for the consideration and deliberation of the cabinet committees.

1. Finally, Spear deposed to the fact that document (6) referred to above was provided on a confidential basis to the shortlisted tenderers.  He also noted that documents (3), (4) and (5) were provided on a confidential basis to Infrastructure Australia.  Spear recorded that the opinions he expressed concerning the release of any of the 10 documents were not affected by the limited disclosure of these 4 documents on the confidential basis referred to.

1. Evidence was also led by the State in relation to the effect of disclosure on the relationship between the State and the Commonwealth.  Lynette O’Connell, the deputy secretary at the federal Department of Infrastructure and Regional Development (“O’Connell”), gave evidence that if documents were disclosed either to the public or on the more limited basis, it would, in her opinion, undermine the confidence of the State as to its ability to engage with Commonwealth government bodies, and in particular Infrastructure Australia, in full and frank exchanges of confidential information in the future. 

1. In turn, O’Connell expressed the view that this would adversely affect the ability of Commonwealth bodies, including Infrastructure Australia, to assess projects on the basis of robust, comprehensive and objective evidence and data. O’Connell continued:

   If such confidential information were no longer disclosed to Infrastructure Australia, its ability to conduct a critical analysis of projects would be undermined, which would adversely affect the quality of its advice to Australian governments, the community and the private sector. ...

   If the disputed documents were to be disclosed, this would also encourage the States and Territories to submit project proposals later in a project's development, as by this time the proposal may have fewer confidential elements and be more ready for public scrutiny.  This would reduce Infrastructure Australia's ability to engage with project proponents early in a project's development.  … This is likely to result in project proposals which are less responsive to national infrastructure policies, and less likely to be classified on Infrastructure Australia's Infrastructure Priority List indicating that they meet the RI Framework criteria.

2. In summary, O'Connell was of the view that disclosure of documents provided to Infrastructure Australia on a confidential basis may adversely affect the quality of project proposals put before the Commonwealth government, having a flow on effect detrimental to the quality of the assessment, the advice and the decision­ making process.

1. The evidence of O'Connell was supported by Gary Liddle, deputy secretary of the Department of Transport, Planning and Local Infrastructure ("Liddle").  Liddle gave evidence about the result of a search of the Department of Transport, Planning and Local Infrastructure in response to the service of the First State Notice and the Second State Notice.  Pursuant to that search 8 documents were located, namely:

(11)Letter from the department to Infrastructure Australia, attaching the short form business case information and completed Infrastructure Australia templates dated 28 June 2013.

(12)Letter from Infrastructure Australia to the department dated 16 July 2013.

(13)Letter from the department to Infrastructure Australia dated 22 July 2013.

(14)Email from the department to Infrastructure Australia dated 6 December 2013.

(15)The State's submissions of 11 November 2011 to Infrastructure Australia.

(16)      Draft of the short form business case.

(17)     Business case.

(18)     Business case.

1. Liddle confined his opinion evidence on disclosure to document (11) referred to above. His opinion was that such publication would result in the State losing confidence in the ability to maintain confidentiality over sensitive documents provided to the Commonwealth via Infrastructure Australia.  He said such loss of confidence would then be likely to result in less detailed information provided to the Commonwealth.  In turn, Liddle suggested that a reduced candour between the 2 polities would reduce the quality of government decision making.  In addition, Liddle expressed the view that the availability of commercially sensitive information to the market would compromise the ability of a project proponent to undertake effective procurement processes and to obtain best value for money in the implementation of a project.

1. In order for the court to make a proper assessment of whether or not to uphold a claim for public interest immunity, it was necessary for the court to be informed as to whether, and the extent to which, disclosure of the relevant information in question would cause harm to the public interest.  Indeed, the absence of such evidence could be fatal to any application for immunity.[37] 

   [37]See par 40 above.

1. However, it is now the role of the court to consider whether the evidence put before the court ought to affect the ability of the State and the Authority to withdraw the Summonses; any such withdrawal being accompanied by a stated intention to make the relevant documents public in the immediate future.[38]

   [38]Senior counsel for the State referred to the possibility that only some of the documents may be released, and that some of the documents to be released may be redacted before release to the public.  However, the application to withdraw the Summonses was made on the basis that the entirety of the relevant information might be released to the public or produced to Murphy in this proceeding.

1. Without deciding the issue, on the evidence before the court it is plain that the State and the Authority had an arguable case that public interest immunity applied given the class of the documents in issue.

G.       Adjudication on the application for leave to withdraw the Summonses

1. Essentially, the State’s position is that a decision has been made at the highest level of government that the public interest favours the release of the documents in question.  This decision was made “by the relevant ministers”, with the minister directly responsible for the decision being the Premier himself.

1. Further, the court was informed that the decision was based not on the class of documents in question, but rather the contents of the documents.  The court was informed that, notwithstanding the documents are properly classified as cabinet documents, the Premier and other ministers had decided that the contents of the documents meant the public interest would be served by disclosure (or substantial disclosure), even though the class of documents are highly sensitive in nature and, ordinarily, would properly attract a claim for public interest immunity.

1. In these circumstances, it would be “most exceptional for the court to intervene”.[39] 

   [39]See par 44 above.

1. It may be that in some cases the court might not accept the position of the executive because the nature and content of the subject matter would require the court to form a different view from the executive.  However, no such issue arises in this case.  The evidence before the court shows that the subject matter concerns a business case for a major road project and related issues.  It is not a subject matter that would, of itself, necessarily attract confidentiality in order to protect the operation of the instruments of government.  Accordingly, the only appropriate course is to accept the position taken by the Premier and the responsible ministers and allow the Summonses to be withdrawn.

1. For completeness, I note that the State also submitted that the release of the documents had been an election issue.  Although this was undoubtedly so, that fact has not formed any part of the basis of the decision to accede to the application to withdraw.  Even assuming the outcome of the election provided (which I seriously doubt) a legitimate curial basis for the court to properly conclude that the public has effectively voted for the release of the documents, that does not mean that disclosure would be in the public interest.  The decision to allow the Summonses to be withdrawn is based solely on the position adopted by the Premier and the relevant ministers as to how the public interest is to be served.

1. A further matter to note is that the court was informed that all the relevant documents were created by or for the State.[40]  No claim for public interest immunity was made by the Commonwealth.  Accordingly, the extent to which O’Connell expressed concerns about disclosure and the prejudice it might cause with respect to any future applications to Infrastructure Australia by the State,[41] that is a matter for the State.  It must be inferred this matter has been given due consideration in making the decision that the public interest is served by disclosure.

   [40]Cf the First State Notice, par 4(ii) and par 67(12) above.

   [41]See pars 64-66 above.

H.       Orders

1. Accordingly, the court will make the following orders by consent:

1.        Leave is granted to the first defendant to withdraw its summonses filed 24 June 2014 and 13 October 2014.

2.        Leave is granted to the second defendant to withdraw its summonses filed 24 June 2014 and 14 October 2014.

3. The costs of and incidental to the applications made by the summonses referred to in paragraphs 1 and 2 above are costs in the cause.[42]

[42]The order as to costs was the subject of agreement between the parties.

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