Nichols v Singleton Council

[2011] NSWSC 946

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Nichols v Singleton Council [2011] NSWSC 946
Hearing dates:	22 August 2011, 23 August 2011
Decision date:	25 August 2011
Before:	Schmidt J
Decision:	Suppression order made.
Catchwords:	PROCEDURE - judgment and orders - suppression orders - reasons for decision - Court Suppression and Non-publication Orders Act 2010 - Local Council - whether complaint against a councillor is a protected disclosure under the Public Interest Disclosures Act 1994 - whether complaint falls under s 130(4)(e) of the Evidence Act 1995 - whether complaint is protected by public interest immunity - whether privilege was waived - complainant's name inadvertently disclosed - competing public interests - complainant's name suppressed - orders made
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 Evidence Act 1995 Local Government Act 1993 Public Interest Disclosures Act 1994 Uniform Civil Procedure Rules 2005 Whistleblowers Protection Act 2001 (VIC)
Cases Cited:	Police Federation Australia v Nixon [2011] FCA 601 Police Federation Australia v Nixon [2010] FCA 315 Sankey v Whitlam [1978] HCA 43;(1978) 142 CLR 1 R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681
Category:	Procedural and other rulings
Parties:	Paul Nichols (Plaintiff) Singleton Council (First Defendant) Bernard Smith (Second Defendant) Scott Greensill (Third Defendant) Gary Thomson (Fourth Defendant)
Representation:	Counsel: Mr R Lovas (Plaintiff) Mr J Griffiths SC with Ms M Allars (Defendants) Solicitors: Alex Irving Solicitor (Plaintiff) Sparke Helmore Lawyers (Defendants)
File Number(s):	2010/376603

Judgment

1. On 23 August, I made suppression orders in terms sought by the first and third defendants. They had sought such orders under s 8 of the Court Suppression and Non-publication Orders Act 2010 ('the Act'), by a notice of motion filed on 17 August 2011. The orders sought were opposed. These are the reasons for the making of those orders.

1. The proceedings are pursued by amended summons in which the plaintiff, Mr Paul Nichols, seeks various relief in relation to a serious complaint made against him under Singleton Council's code of conduct. Singleton Council is the first defendant.

1. The application for suppression orders arose in circumstances where, after Registrar Bradford gave a decision in April 2011 about the question of discovery of documents in the proceedings, the defendants discovered at least one document in which they now claim that inadvertently, the name of a complainant was disclosed to Mr Nichols. He claimed that the evidence did not establish that the disclosure was inadvertent and that disclosure of the complainant's identity was necessary for the case which he sought to advance in these proceedings. His case was that the proper inference from the evidence was that there had been considered decisions made by the defendants to waive any privilege which had previously been claimed in respect of the complainant's identity. That was denied by the defendants.

1. Section 8 of the Act provides:

"8 Grounds for making an order

(1) A court may make a suppression order or non-publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper administration of justice,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c) the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made."

1. What lay in issue between the parties turned on provisions of the Public Interest Disclosures Act 1994 ('the PID Act'); the Local Government Act 1993; the Evidence Act 1995; the Uniform Civil Procedure Rules 2005 ('the Rules') and certain common law principles. Questions of the balance of various competing public interests arose to be considered, particularly the open justice rule, and the public interest in maintaining the confidentiality of the identity of the complainant.

1. The evidence established that Singleton Council has not as yet considered the complaint made against Mr Nichols, even though its making has become a matter of public record. The complaint was referred to a reviewer, Mr Bernard Smith, the second defendant, by Mr Gary Thomson, the fourth defendant and the Council's Director Assets and Facilities. This was the result of the Singleton Council's General Manager, Mr Scott Greensill, the third defendant, having determined that he ought not himself to deal with the complaint, and delegating his role under the code of conduct to Mr Thomson.

1. Upon being advised of the complaint by Mr Smith, Mr Nichols sought various particulars, including the name of the complainant. Mr Smith refused to provide that information, or to provide various of the other particulars which Mr Nichols pressed, although he did offer to meet with Mr Nichols, to discuss the information his investigation had uncovered. Mr Nichols did not take up that opportunity, the particulars he pressed were not provided, although a draft of Mr Smith's report was provided to him for consideration, and eventually Mr Smith made a report, which was provided to Singleton Council by Mr Thomson for consideration at a meeting in November 2010.

1. Amongst other things, at issue in the proceedings is whether or not Mr Nichols was entitled to be told the name of the complainant, as a matter of procedural fairness in the investigation which Mr Smith pursued.

1. The issues which the motion raised included whether:

• The complaint is a protected disclosure under the PID Act.
• The provisions of s 130(4)(e) of the Evidence Act apply .
• Public interest immunity attached to the complainant's identity.
• Any privilege has been waived.
• The suppression order sought should be made and if so, its terms.

Waiver

1. The evidence as to waiver was that before the Registrar, privilege was claimed by the defendants in respect of the identity of the complainant. The Registrar took the view that this was a matter to be dealt with after discovery was given. Verified discovery was ordered. Each defendant later swore affidavits verifying the discovery given. In the schedules of documents discovered, it was indicated in each case that no privilege was claimed. Earlier, legal professional privilege in certain documents, including documents in which the name of the complainant appeared, had been claimed. It is common ground that this privilege was waived. The defendants then gave Mr Nichols access to a hard copy version of the documents and later, provided him with an electronic version.

1. On the hard copy of the document to which the parties referred in their submissions, as well as on other documents where the name of the complainant appeared, the name had been redacted and the following words were written:

'Redacted pursuant to the Public Interest Disclosures Act 1994 and/or public interest immunity'

1. In the electronic version of one of these documents, the name was not redacted. When the court book was later being prepared, Mr Nichols' solicitor, Mr Alex Irving, wrote to the defendants' solicitors on 5 August 2011, advising that:

"4. I note that some of the documents which I have obtained from your discovery still have ******'s name redacted. I will require un-redacted copies for inclusion in the Court Book. The relevant documents are noted in the Comments column."

1. The defendants asserted that the failure to redact the electronic version of the document had been inadvertent and that the claimed privilege had not been waived. At the hearing it was suggested for the defendants that there may also have been some other electronic documents discovered, 'which gave the game away', but examples of those were not provided and nothing turns on them. The same issue lay between the parties in respect of those documents.

1. I was satisfied that it must be accepted, particularly having in mind the provisions of the PID Act, to which I will return, that the evidence did not establish that a decision under s 22 of that Act had been made by any of the defendants, that the complainant's identity should have been revealed to Mr Nichols. Rather, the evidence suggested representative error as the real explanation for the complainant's name being divulged.

1. Mr John Prescott's unchallenged evidence was that he was responsible for redacting the name. He is the defendants' solicitor. The correspondence between the parties' legal representatives reveals what occurred as soon as it was realised that an error had been made. Mr Nichols' solicitor was advised that the name had been disclosed in error and that the privilege claimed had not been waived.

1. Unarguably, the form of the documents by which the claim of privilege was communicated to the defendants, did not accord with the requirements of the Rules, which required that in the list, the documents in respect of which privilege was claimed be identified and the basis of the claim explained. That did not occur, as it ought to have, particularly having in mind the definition of the term 'privileged document' in the Dictionary to the Rules. What was made clear, however, on the hard copies of the documents made available to the defendants for inspection, was that the complainant's name had been redacted, because the defendants maintained their claim that the PID Act applied and that in accordance with its provisions, the complainant's identity was not to be disclosed.

1. It was accepted at the hearing that when the defendants' legal advisers inspected the hard copy of the document in question, they may not have noticed that this approach was adopted in relation to the particular document where the name was not redacted in the electronic version later supplied. Nevertheless, they must unquestionably have seen that the claim was maintained in relation to the other documents where the name had been redacted.

1. What Mr Irving then wrote to Mr Alan McKelvey when preparing the court bundle, showed an appreciation that the name had not been disclosed by the defendants' legal advisers in all the documents provided. On the evidence, notwithstanding the defendants' failure to strictly comply with the requirements of the Rules, in the way in which discovery was given, that there was an error made when the name was disclosed to them, is apparent. In the result that there was any waiver of any privilege in relation to the disclosure of the complainant's identity, may not be accepted.

The PID Act

1. The term 'protected disclosure' is defined in s 4 of the PID Act to mean 'a disclosure satisfying the applicable requirements of Part 2'. They include that the disclosure must be made voluntarily. Section 9(3) provides in that respect:

"(3) A disclosure is made voluntarily for the purposes of this section if it is made by a public official in accordance with a code of conduct (however described) adopted by an investigating authority or public authority and setting out rules or guidelines to be observed by public officials for reporting corrupt conduct, maladministration, serious and substantial waste of public money or government information contravention by investigating authorities, public authorities or public officials."

1. Section 8 of the PID Act provides:

"8 Disclosures must be made by public officials

(1) To be protected by this Act, a disclosure must be made by a public official:

(a) to an investigating authority, or

(b) to the principal officer of a public authority or investigating authority or officer who constitutes a public authority, or

(c) to:

(i) another officer of the public authority or investigating authority to which the public official belongs, or

(ii) an officer of the public authority or investigating authority to which the disclosure relates,

in accordance with any procedure established by the authority concerned for the reporting of allegations of corrupt conduct, maladministration, serious and substantial waste of public money or government information contravention by that authority or any of its officers, or

(c1) to the principal officer of the Department of Parliamentary Services, the Department of the Legislative Assembly or the Department of the Legislative Council about the conduct of a member of Parliament, or

(d) to a member of Parliament or to a journalist.

(2) A disclosure is protected by this Act even if it is made about conduct or activities engaged in, or about matters arising, before the commencement of this section.

(3) A disclosure made while a person was a public official is protected by this Act even if the person who made it is no longer a public official.

(4) A disclosure made about the conduct of a person while the person was a public official is protected by this Act even if the person is no longer a public official."

1. 'Public authority' is defined in s 4 to include 'a local government authority', which is there defined to include a council within the meaning of the Local Government Act . There is no question that Singleton Council is such a council. Its code of conduct is the procedure by which protected disclosures may be made to it (see s 440(3) of the Local Government Act ). That code also provides that the identity of a complainant will not be disclosed (see cl 11.5).

1. Section 4A of the PID Act specifies who 'public officials' are. It is a wide definition, encompassing employees and others. The section provides:

"4A Public officials

(1) In this Act, public official means an individual who is an employee of or otherwise in the service of a public authority, and includes (without limitation) each of the following:

(a) a person employed under the Public Sector Employment and Management Act 2002,

(b) a member of Parliament, but not for the purposes of a disclosure made by the member,

(c) a person employed by either or both of the President of the Legislative Council or the Speaker of the Legislative Assembly,

(d) any other individual having public official functions or acting in a public official capacity whose conduct and activities may be investigated by an investigating authority,

(e) an individual in the service of the Crown,

(f) an individual who is engaged by a public authority under a contract to provide services to or on behalf of the public authority (referred to in this section as an independent contractor to the public authority).

(2) An individual who is a public official because he or she is an independent contractor to the public authority is taken to belong to the public authority for the purposes of this Act."

1. Once a protected disclosure is made, s 22 of the PID Act applies. It provides:

"22 Confidentiality guideline

(1) An investigating authority or public authority (or officer of an investigating authority or public authority) or public official to whom a protected disclosure is made or referred is not to disclose information that might identify or tend to identify a person who has made the protected disclosure unless:

(a) the person consents in writing to the disclosure of that information, or it is generally known that the person has made the protected disclosure as a result of the person having voluntarily identified themselves (otherwise than by making the protected disclosure) as the person who made the protected disclosure, or

(b) it is essential, having regard to the principles of natural justice, that the identifying information be disclosed to a person whom the information provided by the disclosure may concern, or

(c) the investigating authority, public authority, officer or public official is of the opinion that disclosure of the identifying information is necessary to investigate the matter effectively or it is otherwise in the public interest to do so.

(2) As part of its procedures for receiving, assessing and dealing with protected disclosures, a public authority must establish procedures for ensuring that a public official who belongs to the public authority maintains confidentiality in connection with a protected disclosure made by the public official.

Note. These procedures are required to be the subject of a policy of the public authority under section 6D."

1. In construing the provisions of the PID Act, it is necessary to bear in mind its objects, which are provided in s 3 to be:

" 3 Object of Act

(1) The object of this Act is to encourage and facilitate the disclosure, in the public interest, of corrupt conduct, maladministration, serious and substantial waste and government information contravention in the public sector by:

(a) enhancing and augmenting established procedures for making disclosures concerning such matters, and

(b) protecting persons from reprisals that might otherwise be inflicted on them because of those disclosures, and

(c) providing for those disclosures to be properly investigated and dealt with.

(2) Nothing in this Act is intended to affect the proper administration and management of an investigating authority or public authority (including action that may or is required to be taken in respect of the salary, wages, conditions of employment or discipline of a public official), subject to the following:

(a) detrimental action is not to be taken against a person if to do so would be in contravention of this Act, and

(b) beneficial treatment is not to be given in favour of a person if the purpose (or one of the purposes) for doing so is to influence the person to make, to refrain from making, or to withdraw a disclosure."

1. There was no question that Mr Greensill and Mr Thomson were both a 'public official', they being employees of the Council, which is a public authority. It was Mr Greensill who received the complaint and treated it as a protected disclosure to be dealt with under the Council's code of conduct. Having recognised that he had a conflict, he delegated his functions under the code to Mr Thomson, in accordance with the provisions of s 378 of the Local Government Act . Mr Smith, who was appointed to review the complaint, it was common ground, was not an employee of the Council but fell within s 4A(1)(f) of the PID Act, as a person who was engaged to provide services to the Council.

1. Whether councillors such as Mr Nichols are 'public officials', was in contention. His case was that they were not, because they did not have public official functions and did not act in a public official capacity, as s 4A provided. Those terms are not defined in the PID Act, but given the terms of the section, it is clearly envisaged that such individuals need not be employees. That is apparent from the inclusive introductory words of s 4A(1) and for non-employees encompassed in s 4A(1)(be), (e) and (f).

1. Having in mind the provisions of the PID Act, which expressly provides that local councils are public authorities to whom the Act applies and who must adopt procedures by which the requirements of the Act may be given effect, that it was the Parliaments' intention that the Act would not apply to councillors of a local council, is difficult to accept. That this was not intended is confirmed when the definition of 'public official' in s 4A of the PID Act is considered in light of the roles and functions given to councillors by the Local Government Act .

1. The Local Government Act provides for the functions of local councils in ss 21 and 22. In s 8 it is provided:

" 8 The council's charter

(1) A council has the following charter:

• to provide directly or on behalf of other levels of government, after due consultation, adequate, equitable and appropriate services and facilities for the community and to ensure that those services and facilities are managed efficiently and effectively

• to exercise community leadership
• to exercise its functions in a manner that is consistent with and actively promotes the principles of multiculturalism
• to promote and to provide and plan for the needs of children
• to properly manage, develop, protect, restore, enhance and conserve the environment of the area for which it is responsible, in a manner that is consistent with and promotes the principles of ecologically sustainable development
• to have regard to the long term and cumulative effects of its decisions
• to bear in mind that it is the custodian and trustee of public assets and to effectively plan for, account for and manage the assets for which it is responsible
• to engage in long-term strategic planning on behalf of the local community
• to exercise its functions in a manner that is consistent with and promotes social justice principles of equity, access, participation and rights
• to facilitate the involvement of councillors, members of the public, users of facilities and services and council staff in the development, improvement and co-ordination of local government
• to raise funds for local purposes by the fair imposition of rates, charges and fees, by income earned from investments and, when appropriate, by borrowings and grants
• to keep the local community and the State government (and through it, the wider community) informed about its activities
• to ensure that, in the exercise of its regulatory functions, it acts consistently and without bias, particularly where an activity of the council is affected
• to be a responsible employer.

(2) A council, in the exercise of its functions, must pursue its charter but nothing in the charter or this section gives rise to, or can be taken into account in, any civil cause of action."

1. 'Function' is defined in the Dictionary to the Local Government Act as including a 'power, authority and duty'. Chapter 6 of that Act deals with local council's service or non-regulatory functions; Chapter 7 with their regulatory functions; and Chapter 8 with their various ancillary functions. The councillors comprise the governing body of a local council (see s 222). Their role is that specified in s 232:

"232 What is the role of a councillor?

(1) The role of a councillor is, as a member of the governing body of the council:

• to provide a civic leadership role in guiding the development of the community strategic plan for the area and to be responsible for monitoring the implementation of the council's delivery program
• to direct and control the affairs of the council in accordance with this Act
• to participate in the optimum allocation of the council's resources for the benefit of the area
• to play a key role in the creation and review of the council's policies and objectives and criteria relating to the exercise of the council's regulatory functions
• to review the performance of the council and its delivery of services, and the delivery program and revenue policies of the council.

(2) The role of a councillor is, as an elected person:

• to represent the interests of the residents and ratepayers
• to provide leadership and guidance to the community
• to facilitate communication between the community and the council."

1. Section 355 specifies how the council's functions may be exercised:

"355 How does a council exercise its functions?

A function of a council may, subject to this Chapter, be exercised:

(a) by the council by means of the councillors or employees, by its agents or contractors, by financial provision, by the provision of goods, equipment, services, amenities or facilities or by any other means, or

(b) by a committee of the council, or

(c) partly or jointly by the council and another person or persons, or

(d) jointly by the council and another council or councils (including by means of a Voluntary Regional Organisation of Councils of which the councils concerned are members), or

(e) by a delegate of the council (which may, for example, be a Voluntary Regional Organisation of Councils of which the council is a member)."

1. So understood, it is impossible to conclude that a councillor such as Mr Nichols, is not a 'public official' for the purpose of the PID Act. Under s 232 of the Local Government Act councillors are given both public official functions and are obliged to act in a public official capacity, when exercising council's functions in accordance with s 355. It is through the very exercise of such functions and capacities that the council's statutory functions are carried out.

1. The result of that conclusion is not only that protected disclosures may be made about councillors under Chapter 2 of the PID Act, but also that councillors may receive protected disclosures (s 22 of the PID Act) and may themselves make confidential disclosures under s 8, or under s 12B. Section 12B disclosures are made to the 'local government investigating authority', which is defined in s 4 to be the Director-General under s 429A of the Local Government Act . That section provides:

"429A Complaints about councils, councillors, delegates and staff

(1) A public official within the meaning of the Public Interest Disclosures Act 1994 may complain to the Director-General about the conduct of any one or more of the following:

(a) a council,

(b) a delegate of a council,

(c) a councillor,

(d) a member of staff of a council.

(2) A complaint may be made orally or in writing.

(3) The Director-General may deal with a complaint made under this section:

(a) by means of an investigation authorised under section 430, or

(b) in such other manner as the Director-General considers appropriate."

1. This view of the construction of the PID Act is further supported when consideration is given to the provisions made in Chapter 14 Honesty and disclosure of interests of the Local Government Act , which provides in s 439(1) that '[e]very councillor, member of staff of a council and delegate of a council must act honestly and exercise a reasonable degree of care and diligence in carrying out his or her functions under this or any other Act.' Those provisions accord with the requirement in s 6D(1) that obliges a council to have a 'policy that provides for its procedures for receiving, assessing and dealing with protected disclosures'.

1. Section 440 of the Local Government Act deals with the terms of the code of conduct which each council is obliged to adopt, which must incorporate the provisions of the model code of conduct established by Regulation, which may also contain provisions which supplement the model code (s 440(3)). That code applies to the conduct of councillors, as well as that of Council staff, in carrying out their functions.

1. It follows, in my view, that the plaintiff's submission that the complaint made about Mr Nichols is not one to which s 22 of the PID Act applies, may not be accepted.

1. Support for those conclusions may also be found i n Police Federation Australia v Nixon [2011] FCA 601; Police Federation Australia v Nixon [2010] FCA 315, where Ryan J had to consider provisions of the Whistleblowers Protection Act 2001 (VIC), which had similar provisions to those contained in s 22 of the PID Act. His Honour concluded that where that section applied, the Federal Court's rules did not require the production of the information there in question. There must be a similar conclusion in this case.

1. The evidence does not establish that to date, any decision has been made under s 22 of the PID Act that the complainant's name should be disclosed to Mr Nichols. That information has been provided to him and his legal advisers inadvertently. Section 22 envisages that the complaint which has been made may ultimately be referred to the Council for its determination, in accordance with the code of conduct. At that stage it will be a matter for the Council to determine under s 22 whether there should be any disclosure of the name of the complainant. The order which was made preserves this possibility.

The Evidence Act 1995

1. Now knowing the identity of the complainant, Mr Nichols wishes to advance arguments in support of his application in these proceedings, on various bases which only became apparent to him, once the name became known to him. Those arguments were outlined in submissions made in open Court in relation to the notice. It was not the defendants' case that Mr Nichols should be precluded from advancing such arguments.

1. Thereby it became evident that putting the arguments which Mr Nichols wished to press, did not require the disclosure of the complainant's identity, in order to ensure that justice could be done between the parties. I was satisfied that practical steps could be taken to ensure that the identity of the complainant was not inadvertently disclosed by the submissions which he wished to advance, without precluding Mr Nichols from advancing the submissions that he wished to rely on.

1. The question of whether the complainant's name should be received in evidence, was deferred, pending determination of the motion. That possibility was, nevertheless, pertinent to consider in determining the issues raised on the motion. The requirements of the Evidence Act in relation to the receipt of such information appear in ss 130 and 131A, which provide:

"130 Exclusion of evidence of matters of state

(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.

(2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).

(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:

(a) prejudice the security, defence or international relations of Australia, or

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

(c) prejudice the prevention, investigation or prosecution of an offence, or

(d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law, or

(e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, 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,

(b) if the proceeding is a criminal proceeding-whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor,

(c) the nature of the offence, 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,

(f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant-whether the direction is to be made subject to the condition that the prosecution be stayed.

(6) A reference in this section to a State includes a reference to a Territory.

131A Application of Part to preliminary proceedings of courts

(1) If:

(a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and

(b) the person objects to giving that information or providing that document,

the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.

(2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following:

(a) a summons or subpoena to produce documents or give evidence,

(b) pre-trial discovery,

(c) non-party discovery,

(d) interrogatories,

(e) a notice to produce,

(f) a request to produce a document under Division 1 of Part 4.6."

1. Division 1A of the Evidence Act deals with Professional confidential relationship privilege. There it is provided:

"126B Exclusion of evidence of protected confidences

(1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose:

(a) a protected confidence, or

(b) the contents of a document recording a protected confidence, or

(c) protected identity information.

(2) The court may give such a direction:

(a) on its own initiative, or

(b) on the application of the protected confider or confidant concerned (whether or not either is a party).

(3) The court must give such a direction if it is satisfied that:

(a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and

(b) the nature and extent of the harm outweighs the desirability of the evidence being given.

(4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters:

(a) the probative value of the evidence in the proceeding,

(b) the importance of the evidence in the proceeding,

(c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding,

(d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates,

(e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider,

(f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed,

(g) if the proceeding is a criminal proceeding-whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor,

(h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person,

(i) the public interest in preserving the confidentiality of protected confidences,

(j) the public interest in preserving the confidentiality of protected identity information.

(5) The court must state its reasons for giving or refusing to give a direction under this section.

126C Loss of professional confidential relationship privilege: consent

This Division does not prevent the adducing of evidence given with the consent of the protected confider concerned.

1. In s 126A 'protected confidence' is defined as:

" protected confidence means a communication made by a person in confidence to another person (in this Division called the confidant ):

(a) in the course of a relationship in which the confidant was acting in a professional capacity, and

(b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant."

1. Had Mr Nichols not inadvertently come into possession of the complainant's name, its disclosure to him would have arisen for consideration in accordance with s 131A. Otherwise s 130 is relevant.

1. In either case consideration has to be given to the fact that here there was a complaint made under the Council's code of conduct, which envisages that the identity of the complainant will be kept confidential, as does s 22 of the PID Act. There is no evidence that the complainant has consented to disclosure. It is evident that the complainant's identity is a 'protected confidence' falling within s 126A(b) of the definition and that accordingly, the matters dealt with in s 126B(3) and (4) would arise for consideration, or those dealt with in s 130(4)(e).

1. The obligation to maintain confidentiality as to the identity of a complainant under s 22 of the PID Act and the code is designed to ensure that the recognised possibility of the harm which might be caused to a complainant by disclosure of identity does not occur. Any departure from such confidentiality is governed by the provisions made in that section. No such decision has been made. In this case there was no evidence of actual harm to the complainant from the inadvertent disclosure which was made. The exercise of the Court's discretion does not require the materialisation of such harm. Given the steps available to be taken in these proceedings, which could deal with the practical consequences of the making of the suppression order on the further conduct of the proceedings, it was evident that balancing the matters which arose for consideration, including those specified in s 126B(4) and s 130(5), also favoured the grant of the suppression order pressed.

1. This conclusion was reinforced when consideration was given to the question of public interest immunity.

Public Interest Immunity

1. The nature of public interest immunity was not in issue between the parties. It is as described in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, where Gibbs ACJ said, at 38-9:

"The general rule is that the 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. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer [[1968] AC 910 at 940] as follows:

"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."

It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies. In other cases, however, as Lord Reid said in Conway v Rimmer [[1968] AC 910 at 940], "the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it". In such cases once the court has decided that "to order production of the document in evidence would put the interest of the state in jeopardy", it must decline to order production."

1. If public interest immunity in the identity of the complainant exists, it may not be waived. It may even be a matter which a Court must consider, even if not raised by a party (see Sankey v Whitlam at 44 and 58-9). As discussed by Spigelman CJ in R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681:

" Public Interest Immunity

53 Public interest immunity is a field which has been plagued with terminological confusion. The use of "Crown privilege" has been abandoned. The confusion has not diminished. The words "public interest immunity" are sometimes treated as if they extended to any circumstance in which exclusion should be supported on the grounds of public policy - and in that sense involve a 'public interest'. They were so treated in the submissions in this case. The terminology of "public interest" should not be permitted to extend the basis of the doctrine.

54 "Public interest immunity" is concerned with, and the terminology should be confined to, the conduct of governmental functions. Section 130 of the Evidence Act 1995 reflects this proposition by use of the formula: "that relates to matters of state".

55 The 'public interest', to which this immunity refers, requires a dimension that is governmental in character. The references to "public interest" in the frequently cited passages from the case law, should be so understood (eg Sankey v Whitlam (1979-80) 142 CLR 1 at 38-39, Alister v R (1983-84) 143 CLR 404 at 412). These passages did not intend to encompass every situation in which it could be said that some form of public policy could be served by non-disclosure. In my opinion, it is not correct to treat public interest immunity as if it were a "residual category" of circumstances in which courts limit access to information on the basis of weighing the public interest in disclosure against any factor that can be described as a "public interest". (As does Ligertwood Australian Evidence (3rd ed, (1998) paras 5.96, 5.104; c/f Cross on Evidence (5th Australian ed. 996) paras 27030, 27055, 27080).

56 The references in the case law to the proposition that the categories of public interest are not closed, need to be similarly confined. (See D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 230; Sankey v Whitlam at 60; Rogers v Home Secretary (1973) AC 388 at 412F; R v Chief Constable of West Midlands Police; Ex parte Wiley [1995] 1 AC 274 at 305). Such references should be understood in the sense identified by Mason J in Australian National Airlines Commission v The Commonwealth (1975) 132 CLR 582 at 591. His Honour referred to what was then still called "Crown privilege" and added:

"...it would be an error to regard the categories of documents which attract privilege as necessarily closed. As time passes it is inevitable that new classes of documents important to the working of government will come into existence and that detriment to the public interest may occur in circumstances which cannot presently be foreseen". (emphasis added)

57 Public interest immunity arises because of "the need to safeguard the proper functioning of the executive arm of government and of the public service "(emphasis added), to use the formulation which Stephen J in Sankey v Whitlam at 56 described as "the reasons customarily given" for the immunity. This formulation was adopted by Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ in Commonwealth v Northern Land Council (1992-93) 176 CLR 604 at 619, and described by their Honours as "the ordinary reasons supporting a claim for public service immunity".

58 The dividing line between private and public interests is not always easy to draw. Public institutions - relevantly, in the present case, hospitals - provide private services, indistinguishable from the same services provided by private institutions. On the other hand, significant schemes of public regulation are conducted by private institutions, increasingly so over recent years.

59 Similar issues have arisen in the sphere of administrative law, in order to determine whether particular organisations are subject to judicial review on the basis of public law doctrines, such as denial of natural justice. (See the authorities discussed in Aronson and Dyer Judicial Review of Administrative Action (1996) pp130-138. I have referred to these issues in my address "Foundations of Administrative Law", the 1998 R.N. Spann Oration published in (1999) 58 Aust. J. Public Administration 3, and (1999) 4 The Judicial Review 69).

60 The same difficulty of identifying a boundary arises with claims of public interest immunity. The identity of the organisation is not decisive, as was clearly established in D v NSPCC , to which Beazley JA makes detailed reference. In that case the public regulatory role of the private association was clearly established. After referring to the police informer category, Lord Hailsham LC added:

"Once, however, it is accepted that information given to the police in the instant case would have been protected, it becomes, in my judgment, manifestly absurd that it should not be accorded equally to the same information if given by the same informant to the local authority (who would have been under a duty to act on it) or to the appellant society, to whom, according to the undisputed evidence, ordinary informants more readily resort ....

But the police, the local authority and the society stand on the same footing. The public interest is identical in relation to each". (229-230); see also at 219A-C, F per Lord Diplock and 241F per Lord Simon of Glaisdale.)

61 Although there are other strands in the reasoning, this was the decisive consideration. Nothing in D v NSPCC qualifies the emphasis on the significance of the public element as set forth in Marks v Beyfus (1890) 25 QBD 494 especially at 496.10-497.3 and 498.3. (See Science Research Council v Nasse [1980] AC 1028 at 1087-1088; Eagles "Evidentiary Protection for Informers - Policy or Privilege" (1982) 6 Crim LJ 175 at 180-184). The expansive remarks of Lord Edmund Davies in D v NSPCC at 245 have not been adopted.

62 An example of the application of this proposition is that professional disciplinary bodies have been found to fall within the scope of public interest immunity. This is because these private bodies, in the relevant respect, perform a governmental - indeed generally statutory - function. (See Borg v Barnes (1987) 10 NSWLR 734; Law Institute of Victoria v Irving [1990] VR 611; Legal Services Commission v Trotter (1990) 54 SASR 74; Finch v Grieve (1991) 22 NSWLR 528).

63 To similar effect is the reasoning - although differing in its application to the specific statutory scheme - of Bowen CJ and Toohey J with respect to Aboriginal information supplied to the Sacred Sites Authority. (See Aboriginal Sacred Sites Authority v Maurice (1986) 20 FCR 104 at 109-110, 129-130; c/f 114-115 per Woodward J who took the broader approach).

64 In his judgment, Freeman DCJ, in the alternative to the derivative application of Division 1B, accepted the public interest immunity claim in the present case. His Honour appears to have accepted the submission put to him that:

"The interest ... is a matter touching the governance of New South Wales in that it is necessary to protect confidentiality in order to ensure that the business of the Department of Health can successfully be conducted".

65 The "business of the Department of Health" to which reference is made, consists of the provision of sexual counselling services to individuals. This is not governmental in character, even if it is supplied by a public institution. In submissions to this Court, counsel for the Health Service expressly abjured the proposition that the privilege was restricted to governmental health services. In this regard the submissions on appeal appear to differ from those before Freeman DCJ. On this approach, in my opinion, the issue is whether a new category of privilege should be created, not whether public interest immunity applies.

66 The evidence in support of this matter is set out in para 10 of Dr MacGregor's affidavit, quoted in James J's judgment. This focussed on the detriment to the "public interest" from discouraging sexual assault victims "endeavouring to rehabilitate themselves". This detriment does not fall within public interest immunity. It can be protected, if at all, only by creating a new category of privilege.

67 The only governmental public interest suggested by Dr MacGregor was that sexual assault victims may be discouraged "possibly from reporting sexual assaults". The mechanism for this link was not specified with any precision. The use of the qualification "possibly" deprives the argument of force, even if Dr MacGregor's opinion on such matters were entitled to weight. There is no evidence before the Court which suggests that this effect, if any, is of sufficient significance to warrant its acceptance as an impediment to the administration of justice.

68 Subsequently to completing the above analysis, I have read the judgment of Beazley JA. Her Honour refers to an article by Cossins and Pilkington "Balancing the Scales" (1996) 19 UNSWLJ 222, particularly an extract from comments by an employee of the Sydney Rape Crisis Centre, quoted therein, in what is described as a personal communication with the authors of the article. I am unable to agree with her Honour that material of this character, on which the Court did not receive submissions, is able to overcome the inadequacy of the material before the court. I refer to this inadequacy further below under the heading of "Privilege". As I indicate there, no attempt was made to present to this Court in a systematic way a comprehensive and balanced body of evidence and additional material on this subject. The Court is not in a position to develop the common law with the requisite degree of confidence."

1. In this case the plaintiff argued that there is no such immunity in the identity of the complainant, given the express provisions made in s 220 of the Local Government Act , which provides:

"220 Legal status of a council

(1) A council is a body politic of the State with perpetual succession and the legal capacity and powers of an individual, both in and outside the State.

(2) A council is not a body corporate (including a corporation).

(3) A council does not have the status, privileges and immunities of the Crown (including the State and the Government of the State).

(4) A law of the State applies to and in respect of a council in the same way as it applies to and in respect of a body corporate (including a corporation)."

1. Section 220(3) is not, however, concerned with the question of whether or not public interest immunity attaches to particular communications made to or by a local council. The immunity in question is not that of the Crown. It is a different concept, as Spigelman CJ explained in Young . Further, as his Honour also discussed, confidential communications themselves may give rise to a public interest including in cases where allegations of misconduct arise for consideration:

"143 Confidentiality as such has not been recognised as attracting either immunity or privilege. However, in D v NSPCC Lord Hailsham at 230 stated that there were cases where confidentiality was itself a public interest. He gave as an example the case where a body was charged with the function of the enforcement and administration of the law by the initiation of court proceedings. It has also been recognised that the confidential nature of communications may be relevant to the balancing exercise which the court is required to undertake in a public interest immunity claim: Science Research Council v Nasse [1980] AC 1028.

....

146 The question of confidentiality and public interest immunity was extensively discussed in D v NSPCC . Lord Diplock said at 218:

"... The private promise of confidentiality must yield to the general public interest that in the administration of justice truth will out, unless by reason of the character of the information or the relationship of the recipient of the information to the informant a more important public interest is served by protecting the information or the identity of the informant from disclosure in a court of law."

....

171 A claim for public interest immunity in a different context was upheld by Wood J in Finch v Grieve where the New South Wales Bar Council was held to be entitled to claim public interest immunity in respect of documents received by the Bar Council giving rise to an allegation of misconduct against a barrister. The claim was considered by his Honour against the background of the statutory regime which regulates the conduct of barristers. Wood J noted that protection was required because there was a:

"substantial public interest in the Bar Council receiving complaints about misconduct of barristers, in being able to speak freely with such complaints, in being able to fully investigate those complaints and in appropriate cases being able to gather additional evidence. This is part and parcel of a public interest that it effectively carry out the statutory functions assigned to it, and that the legislation as a whole be implemented. The public interest is obvious and hardly needs stating. The public are to be protected from barristers who are guilty of professional misconduct, or unsatisfactory professional conduct, and are entitled to have effective orders made not only for the disciplining of those barristers who offend, but to have their losses made good. These are the ends the Act serves, and it provides an effective means for discipline and compensation."

51In this case, given the objects of the PID Act and the public interest in the mechanisms established by local councils' codes of conduct for encouraging the disclosure of 'allegations of corrupt conduct, maladministration, serious and substantial waste of public money or government information contravention by that authority or any of its officers', it was unarguable that there was a significant public interest in maintaining the confidentiality of a complainant's identity, in accordance with the regime established by the PID Act.

1. In my view, in the circumstances which had arisen, the public interest in the disclosure of the complainant's identity, which would otherwise be available to Mr Nichols under the Rules, had to give way to the public interest in the Court giving effect to the Parliament's intention that disclosure of the identity of a complainant be limited to the circumstances provided for in s 22 of the PID Act.

Conclusion

1. Given what I have said about the nature of the case which Mr Nichols wished to advance in these proceedings and the public interest in preserving the confidentiality of the identity of those who make complaints under the Council's code of conduct, it seemed to me that unless action of the kind permitted by s 22 of the PID Act was taken in relation to the disclosure of the identity of the complainant, that the balancing exercise which this Court had to undertake, had to result in the making of the suppression order pressed.

Order

1. The order made was:

1. In order to prevent prejudice to the proper administration of justice, and in the public interest, pursuant to s 8(1)(a) and (e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the name or identity of the person who made a complaint by letter dated 30 May 2010 to the first defendant and/or the third defendant concerning breaches by the plaintiff of the Singleton Council Code of Conduct ("the complainant") shall not be disclosed or published.

2. To avoid any doubt, nothing in Order 1 prevents the lawful disclosure of the complainant's identity under the Public Interest Disclosures Act 1994 (NSW), or disclosures between parties to the proceedings and their legal representatives for the purposes of the proper conduct of the proceedings.

3. The reasons for the order are as expressed in the order itself, namely that having heard the parties in open court, I became satisfied that in the circumstances which have arisen, it is necessary to make the order, so as to prevent prejudice to the proper administration of justice, the public interest in the order being made, significantly outweighing the public interest in open justice. In coming to that conclusion, I had regard to the way in which the order was framed, which I was satisfied limited the impact which the order had, on the open justice rule.

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Amendments

19 October 2012 - 'privilege' amended to read 'priviliged document'

Amended paragraphs: [16]

Decision last updated: 25 August 2011