Northern Land Council v Commonwealth of Australia & Energy Resources of Australia Ltd

Re: NORTHERN LAND COUNCIL
And: COMMONWEALTH OF AUSTRALIA and ENERGY RESOURCES OF AUSTRALIA LIMITED
No. V G464 of 1987
FED No. 382
Discovery and Interrogatories
24 FCR 576
102 ALR 110

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson J.(1)

CATCHWORDS

Discovery and Interrogatories - Production and inspection - Grounds for resisting production - Public policy - Cabinet notebooks - Records of Cabinet proceedings - Inspection allowed.

HEARING

MELBOURNE

#DATE 6:8:1990

Counsel for the applicant: Mr R. Blowes

Solicitor for the applicant: Brett Ian Midena

Counsel for the Firstnamed respondent: Mr D. Graham QC and Mr A. Robertson

Solicitor for the Firstnamed respondent: Australian Government Solicitor

JUDGE1

Motions for an order that the applicant have inspection of documents claimed by the respondent Commonwealth to be immune from inspection on the ground of public interest and for an order for further discovery by the Commonwealth to the applicant.

The proceeding in which the applicant moves for the orders is concerned with an agreement made between the Commonwealth and the applicant on 3 November 1978. The applicant seeks a declaration that the agreement is void or, alternatively, a declaration that the agreement has been avoided by the applicant, or a decretal order rescinding it. The agreement was of a description contained in s.44(2) of the Aboriginal Land Rights (Northern Territory) Act 1976. The circumstances under which this agreement came to be desired by the Commonwealth, and the subjects of such an agreement, are narrated in Northern Land Council v. The Commonwealth (1986) 161 CLR 1 and Northern Land Council v. The Commonwealth (No. 2) (1987) 61 ALJR 61, and need not be repeated here.
The amended statement of claim includes an historical narrative which commences in paragraph 20 and concludes in paragraph 32. The narrative includes allegations that in or about August 1977 the Commonwealth decided to grant to several persons, to whose interests the second respondent later succeeded, an authority to carry on mining operations for uranium on land ("the Ranger land") of which the Kakadu Aboriginal Land Trust was the proprietor in fee simple and which was "Aboriginal land" within the meaning of that expression in the Aboriginal Land Rights (Northern Territory) Act 1976, and decided also, as paragraph 21 of the amended statement of claim reads, "to require" the applicant to enter into an agreement of the description contained in s.44(2) of that Act. That Act confers no power on any person to make such a requirement, but it does empower the Minister charged with the administration of the Act, where he is satisfied that a Land Council such as the applicant has refused, or is unwilling, to negotiate with respect to the terms and conditions of "an agreement required by sub-section .... 44(2)," or that such a Land Council and the Commonwealth cannot agree on the terms and conditions of the agreement, to appoint an arbitrator to determine those terms and conditions. When that determination has been made and the Commonwealth iswilling to enter into the agreement "the Land Council shall," so sub-section 46(2) of the Act ordains, "enter into that agreement", and, if the Land Council refuses to do so, the Minister may enter into the agreement "in the name of, and on behalf of, the Land Council" (s.46(3)).
The narrative includes allegations that in August 1977 the Minister publicly announced the Commonwealth's decision to permit uranium mining on the Ranger land (paragraph 22), that the Commonwealth permitted "preparatory work relating to" that mining to proceed in 1977 without consulting the applicant (paragraph 23), and that during negotiation for agreement under s.44(2) representatives of the Commonwealth threatened representatives of the applicant with legislative action to obviate the requirement of agreement by the applicant, and threatened the appointment of an arbitrator before the conditions precedent to appointment had been fulfilled and threatened not to provide the applicant with "moneys .... to finance any such arbitration" (paragraph 24). There are allegations that information which the Commonwealth had (and which the reader is, as I suppose, to infer would be useful to the applicant in negotiating and making the agreement) was denied the applicant, notwithstanding its requests (paragraphs 25, 26).
The narrative includes the following allegations:

"27. In conducting the negotiations the NLC, to the knowledge of the Commonwealth, was at a substantial disadvantage to the Commonwealth because -

(a) ts members were inexperienced in commercial matters and in the negotiation of terms and conditions of an agreement relating to uranium mining;

(b) the NLC was entirely dependent upon the Commonwealth for finance;

(c) the Commonwealth was in possession of the information and documents set forth in paragraph 25 and the NLC was not;

(d) the bargaining position of the Commonwealth was by reason of its resources, experience, knowledge and position as a government and joint-venturer greatly superior to that of the NLC;

(e) the members of the NLC and the Group, by reason of linguistic, cultural, social, racial and educational differences the general community were, to the knowledge of the Commonwealth, its servants or agents, likely to be influenced by what was said or done by servants or agents of the Commonwealth.

28. During the course of the negotiations the Commonwealth represented to the NLC that it intended to be and remain a joint venture partner in the Ranger project.

PARTICULARS

(a) During the negotiations referred to in the particulars under paragraph 24 hereof, representatives of the Commonwealth including Mr O'Donovan stated to the NLC's negotiators words to the effect that 'we (the Commonwealth) are a party and being a party we will be able to enforce the obligations in the agreement'.

(b) During the negotiations the said

representatives of the Commonwealth repeatedly stated to the NLC's negotiators that the Commonwealth intended to be and remain a joint venture partner in the Ranger project."

The expression "the Ranger project" is ambiguously defined in paragraph 16 of the amended statement of claim. It may be taken to mean either the development of deposits of uranium under the Ranger land or an understanding relating to that development between the Commonwealth and two other persons to whose interests the second respondent later succeeded.

The amended statement of claim continues:
"28A. The Commonwealth conducted the negotiations on behalf of the joint venture partners in the Ranger project and the joint venture partners including the Commonwealth intended that the terms and conditions agreed to between the Commonwealth and the NLC pursuant to s.44(2) would be terms and conditions imposed upon the joint venture partners as conditions for conducting the Ranger project.
29. Further, during the course of the negotiations, and up and including 3 November 1978 the Commonwealth stated to the NLC that it would ensure that mining operations on the Ranger land would not operate to the disadvantage of Aborigines, that the NLC and Aborigines should trust the Commonwealth government, that the Commonwealth would ensure that the proposed agreement was fair to the NLC and to Aborigines and that it was in the Aborigines' best interests to agree to the terms and conditions of the draft agreement referred to in paragraph 30 hereof.
........ ........ ........ ........ ........ .......
30. On 25 August 1978 the negotiators for both the NLC and the Commonwealth initialled a draft agreement (the 'draft agreement') subject to ratification by the parties.
31. From 25 August 1978 to and including 3 November 1978 the Commonwealth continued to conduct itself in like manner to that described in paragraphs 22, 23, 24, 26, 28 and 29.
........ ........ ........ ........ ........ .......
32. At the Oenpelli meeting, subsequent to Mr Viner's statement, the NLC and the Commonwealth executed an agreement in writing pursuant to the provisions of section 44(2) of the Land Rights Act ('the section 44 agreement').
33. The section 44 agreement-
(a) was not the result of arm's length negotiations between the NLC and the Commonwealth;
(b) was executed by the NLC as a result of the conduct by the Commonwealth referred to in paragraphs 21 to 31 (both inclusive) hereof; and
(c) would not have been entered into by the NLC but for such conduct.
34. The section 44 agreement is inadequate, unreasonable, and unfair to the NLC.
PARTICULARS
(a) Particulars have been supplied by the NLC to the Commonwealth in a letter to the Prime Minister dated 22 August 1985 and are also contained in a document headed 'Draft Inadequacies of the Ranger agreement' supplied to the Commonwealth on 24 August 1984.
(b) In particular the agreement -
(i) fails to provide adequate protection for Aborigines from mining operations or for the rehabilitation of the site, there being no control by the NLC over the mining operations or any direct or effective ability to enforce environmental and health safeguards;
(ii) contains no obligation to fill in the mine pit when mining operations cease;
(iii) does not give the NLC a direct or effective say in how the Ranger land will be used and in respect of other material aspects of the mining operations;
(iv) fails to provide adequate protection for aborigines against special adverse consequences of uranium mining;
(v) fails to provide appropriate environmental standards or procedures. Those provided are grossly deficient in many respects. Many environmental matters are left to the discretion of the Commonwealth and Northern Territory Government appointed officers, which discretion the NLC has no power to challenge;
(vi) fails to give the NLC the right to take any emergency action to prevent serious damage to persons, land, water, vegetation or animal life;
(vii) fails to give the NLC access to relevant information concerning the Ranger operation and in particular plans for the release of contaminated water;
(viii) fails to provide fair and reasonable payment to the NLC and Aboriginal bodies. The payments provided are inadequate by comparison to those payable under like agreements in othercountries. The annual payment for the life of the contract (which itself is inadequate) is not indexed for inflation;
(ix) fails to provide and should have provided for -
(1) a fair annual rental;
(2) inflation;
(3) a royalty based on fair

market value;

(4) a minimum annual royalty

payment;

(5) profit participation; and

(6) an increased profit

participation once a threshold

of profitability is reached;

(Further particulars will be

supplied after discovery.)"

Paragraph 35 alleges that at all material times the Commonwealth was in a fiduciary relationship with the applicant and sets forth the matters by reason whereof that allegation is said to be justified. The following paragraphs read:

"36. By reason of the existence of the fiduciary relationship between the Commonwealth and the NLC, the Commonwealth was under an obligation -

(a) to supply to the NLC the documents and information referred to in paragraph 25 hereof;

(b) to ensure that the section 44 agreement was adequate, reasonableand fair;

(c) not to do or permit to be done the acts matters or things or make or permit to be made the statements referred to in paragraphs 22 to 24, 26 to 29 and 31 hereof;

(d) not to make profits or derive benefits at the expense of the NLC or at all by reason of the NLC's entry into the section 44 agreement;

(e) not to engage in self-dealing whereby its fiduciary obligations conflicted with its own interests as a joint venturer in the Ranger project.

Wrongfully and in breach of the aforesaid fiduciary obligations the Commonwealth -

(a) did not supply the information and documents referred to in paragraph 25 hereof to the NLC; (b) allowed the NLC to enter into the section 44 agreement which was inadequate, unreasonable and unfair; (c) did or permitted to be done or said or permitted to be said the acts matters things and statements referred to in paragraphs 22 to 24, 26 to 29 and 31 hereof;

(d) engaged in self-dealing whilst acting in a fiduciary capacity;

(e)(i) on 12 September 1980 agreed to sell and assign its interest and the interest of the AAEC in the Ranger project to ERA for the total sum of $229,306,767.70;

(ii) made direct and indirect profits and benefits

from the Ranger project, particulars of which will be supplied after discovery and interrogation.

In the premises, by reason of the existence of the fiduciary relationship between the Commonwealth and the NLC, and the facts and matters alleged in paragraphs 35, 36 and 37 hereof- (a) the Ranger agreement is void and of no effect whatsoever, alternatively is voidable and has been avoided by the NLC; (b) the NLC and Aborigines entitled to, or to the benefit of, payments in respect of mining operations carried on on the Ranger land have and will continue to suffer loss and damage.

PARTICULARS Losses of the order of Two Hundred Million Dollars ($200,000,000.00) have and will be suffered. (Further particulars will be supplied after discovery.)

(c) the Commonwealth has made profits and derived benefits from the mining operation carried on on the Ranger land (including all direct and indirect benefits received or receivable by the Commonwealth from the Ranger uranium project and the profits derived by the Commonwealth and the AAEC from the sale of their interest in the Ranger project to ERA in September 1980).

(Particulars will be given after discovery.) 39. The Commonwealth is obliged to account to the NLC for all profits derived by it from the Ranger project.

Further, the section 44 agreement was executed by the NLC as a result of duress by the Commonwealth.

PARTICULARS

The contents of paragraphs 21 to 37 (both inclusive) hereof are referred to and repeated.

Further, the section 44 agreement was executed by the NLC as a result of undue influence by the Commonwealth.

PARTICULARS

The contents of paragraphs 21 to 37 (both inclusive) hereof are referred to and repeated. Further, a special relationship of influence existed between the Commonwealth and the NLC by reason of -

(a) the Commonwealth's power to legislate in respect of Aborigines;

(b) the repeated exercise of that power by the Commonwealth to pass legislation such as-

1. Aboriginal Affairs (Arrangements with the States) Act 1973.

2. Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975.

3. Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-management) Act 1978.

4. Aboriginal Councils and Associations Act 1976.

5. Aboriginal Development Commission Act 1980.

6. Aboriginal Land Rights (Northern Territory) Act 1976.

7. Australian Institute of Aboriginal Studies Act 1964.

8. States Grants (Aboriginal Assistance) Act 1976;

(c) the authority vested in the Minister for Aboriginal Affairs by virtue of the aforementioned legislation;

(d) the establishment and administration of a Department for Aboriginal Affairs which Department exercises administrative functions relating to: Aboriginal employment, housing, welfare, education, art and culture including its development and preservation, health, self-management, infant mortality, the use of Commonwealth funds, the outstation movement, involvement in legal proceedings, land rights and generally in relation to the economic, cultural and social development of the Australian Aborigines;

(e) the assumption by the Commonwealth of responsibility for the Australian Aborigines including those in the Northern Territory;

(f) public statements by responsible Ministers and officers of the Crown to the effect that the Commonwealth has, and regards itself as having, and discharges, special obligations in respect of the general welfare, housing, health, education, advancement and future of Australian Aborigines.

Further, the section 44 agreement was executed by the NLC which was at a disadvantage to the Commonwealth as alleged in paragraph 27 hereof, the existence of which disadvantage was known by the Commonwealth, and in causing or permitting the NLC to enter into the section 44 agreement and in acting as it did as is described in paragraphs 21 to 37 (both inclusive) hereof the Commonwealth acted unconscionably."

Minutes of proceedings in the Commonwealth Cabinet which relate to matters in issue in this proceeding have been discovered and produced for inspection by representatives of the applicant under the provisions of orders made in the proceeding which restrict copying of the documents and dissemination of information derived by that inspection of them. Also discovered were 113 books called Cabinet notebooks and thirteen other notebooks in which notes had been made of discussions in Cabinet and in committees of Cabinet by two officers of the Department of Trade and Resources. These 126 notebooks are the subjects of the motion for inspection and the subjects of objection by the Commonwealth to production for inspection on the ground of public interest immunity. There could of course be no question, notwithstanding the phrasing of the notice of motion, of granting inspection of any entry in the notebook except one which relates to a subject matter of this proceeding.
There was evidence, which I accept, that meetings of Cabinet and of Cabinet committees are attended by three senior officers of the Australian Public Service who take notes of the proceedings for the sole purpose of enabling them to write minutes which record "the outcomes reached" at the meeting and which are called "Cabinet Minutes". The following evidence, which I accept, was given:

"Since the sole purpose of the notes in the notebooks is to enable the notetakers to reach agreement as to the terms of the outcomes reached at the Cabinet Meeting, none of the notebooks, nor the three notebooks together, contain a verbatim transcript of the Cabinet discussions. Thus a note may be made of what one Minister said but no note made of what others said. Also the order of notes in a notebook does not necessarily reflect the order of discussions. The Notebooks are used by notetakers to settle any disagreements about the terms of a minute.

6. The styles of different notetakers as to what and how much is recorded vary considerably. Some use recognized shorthand scripts and others use their own form of abbreviations. Some use longhand.

7. Cabinet Notebooks are uniquely identified, folio numbered notebooks provided by the Cabinet Office solely for use by notetakers when they attend meetings of Cabinet or Cabinet Committees. Each Notebook is issued to an individual notetaker for his or her exclusive use. Ministers do not have access to them. Notebooks which are not in regular use are returned to the Cabinet Office for secure custody and reissued to the same notetaker only as required by that notetaker. Once a Notebook is full, a new one is issued to the notetaker as required and the full Notebook is put in secure storage where it is retained Under this system, Notebooks will cover part or all of a number of meetings of Cabinet and Cabinet Committees and include entries relating to a variety of subjects coming before Cabinet or a Cabinet Committee."

The expression "Cabinet notebook" is given a defined meaning for the purposes of the Archives Act 1983, by s.3(1) thereof:

"a notebook or other like record that contains notes of discussions or deliberations taking place in a meeting of the Cabinet or of a committee of the Cabinet, being notes made in the course of those discussions or deliberations by, or under the authority of, the Secretary to the Cabinet."

A record that is a Cabinet notebook, within the defined meaning of that expression, is excluded from the defined meaning of the expression "Commonwealth record" in the Archives Act 1983, and is therefore not a subject of any of the provisions of that Act which regulate dealings with, and access to, Commonwealth records.

The thirteen notebooks of the two officers of the Department of Trade and Resources record proceedings of Cabinet and of Cabinet committees at which they were present, with the permission of the Prime Minister, for the purpose of assisting the Minister of Trade and Resources in relation to particular matters in which the Minister was involved. In accordance with administrative requirements in force at the time when these notebooks were used they were given into the custody of the Cabinet Office, one of the Divisions of the Department of the Prime Minister and Cabinet.
The notebooks to the production of which for inspection objection was taken were identified in discovery, in the case of Cabinet notebooks by number, name of notetaker and date, and in the case of the other thirteen notebooks by identifying letter and page numbers. The Acting Director of the Cabinet Office, Anthea Tinney, has deposed that she has examined all but six of the 113 Cabinet notebooks and has identified therein "passages of notes relating to Cabinet discussions which relate to" occasions when "submissions and decisions previously discovered by the First Respondent in this proceeding were considered", and has read those passages "so far as the same were legible and decipherable". The other six Cabinet notebooks cannot presently be located, she deposed. She has also deposed to having read notes made in the thirteen notebooks of discussions in Cabinet and in Cabinet committees. She has in her affidavit deposed:
"11. Disclosure in this proceeding of the entries which I have read .... would disclose notes made by notetakers or other Commonwealth officers of business conducted and of discussions which took place in Cabinet or a Cabinet Committee. Disclosure of some of the entries would disclose notes of what a particular Minister said in such meetings.
12. In my view disclosure of those entries in this proceed would harm the public interest in that disclosure would undermine the principle of collective responsibility referred to in paragraph 14 below. Disclosure would also harm the public interest for the reason that disclosure could create or contribute to ill-formed (sic) or captious public or political criticism on the basis of incomplete information on a matter of current political debate referred to in paragraph 17 below.
13. While affairs of government are conducted for the public benefit and advancement, and the deliberations of the Parliament are conducted in public, it is established by convention and acknowledged in Commonwealth legislation that confidentiality properly attaches to the deliberations of Ministers in Cabinet. This convention is followed by all governments in Australia, both State and Federal, and in all nations with a similar system of government. The convention recognises that it is necessary that there be a forum in which full and frank discussions by Ministers can take place, uninhibited by the need to temper debate to meet sectional interest or media pressures, and in which individual opinions can be expressed freely among colleagues and without public comment or exposure. If this were not so the efficiency of the policy-making process would be significantly impaired.
14. It is a complementary convention of Cabinet government that decisions once arrived at in the Cabinet are supported by all Ministers whatever their personal views. This principle of collective responsibility of members of Cabinet for decisions taken is a long-standing and an integral part of the Australian system of government. Whatever range of private views Ministers may put in Cabinet discussions, to ensure effective and efficient government it is necessary that there be finality of decision making and that decisions once arrived at, and announced, should be clear and supported by all Ministers. Collective responsibility of Ministers also ensures that government is properly accountable and responsible as a whole to the Parliament and through it to the people.
........ ........ ........ ........ ........ .......
17. The Cabinet submissions and decisions to which the entries ...... relate are concerned with questions of the mining of uranium in Australia generally, of the mining of uranium at Ranger, of the mining of uranium and other minerals on Aboriginal land, and of mining on or in proximity to national parks. These questions are still matters of current political debate."
Objection was taken by Mr Blowes of counsel for the applicant to the admission of paragraph 12 and the last sentence of paragraph 17 of Miss Tinney's affidavit. It was submitted that the witness was not shown to be qualified to express the opinions contained in paragraph 12, although Mr Blowes at the same time stated that those opinions could be said to mirror opinions judicially expressed in some of the authorities on this branch of the law. It was not submitted, as perhaps it might have been, that the opinions expressed were based in part on the particular content of the entries the witness had read in the notebooks. I should make it clear that I have not taken the opinions to be based on that content, except that which is said about content in paragraph 11 of the affidavit. I think paragraph 12, whether technically admissible or not, should be ignored because it proceeds from an officer of the Australian Public Service of a seniority unsuitable for the occasion. (See Sankey v. Whitlam 142 CLR at 43-44 (per Gibbs ACJ.).) However, the opinions expressed in that paragraph are expressed also by another, more suitable, officer of that Service, whose qualification to express the opinions in my opinion sufficiently appeared. I overrule the objection to the last sentence of paragraph 17, which is an assertion of historical, albeit very recent, fact.
The Secretary of the Department of the Prime Minister and Cabinet, Michael Henry Codd, has deposed that, although he has not examined the entries, he is familiar with the procedure followed in the taking of notes in meetings of Cabinet and of Cabinet Committees, and that he shares the opinions to which Miss Tinney deposed in paragraphs 12, 13, 14, 15, 16 and 17 of her affidavit.
This claim of public interest immunity is based upon the nature of the class to which these documents belong. The considerations of public interest which move to veil from public knowledge the deliberations of members of an executive government in cabinet and in committees of cabinet are persuasively expressed by Blackburn C.J. in Whitlam v. Australian Consolidated Press Ltd. (1985) 73 FLR 414 at 421-422. The circumstances which tend to diminish the weight of those considerations have been discussed in a number of cases. If the proceedings of the executive government, or the topics to which those proceedings relate, are no longer current when inspection is sought, the risk of injury to the efficient working of government by disclosure of deliberation in those proceedings is said to be diminished : Sankey v. Whitlam (1978) 142 CLR 1 at 41-42, 98. The relative importance of the topic, and the extent to which the topic savours of the traditionally governmental or the merely commercial, are said to be allowed an influence on the evaluation in a particular case of the weight of the considerations to which Blackburn C.J. refers : Sankey v. Whitlam 142 CLR at 41-42, 99; Harbours Corporation of Queensland v. Vessey Chemicals Pty. Ltd. (1986) 12 FCR 60; Hooker Corporation Ltd. v. The Darling Harbour Authority (Supreme Court of N.S.W.; unreported; judgment 7 May 1987); Robinson v. South Australia (1931) AC 704 at 713-716.
It was submitted by Mr Blowes of counsel for the applicant that, as the events recorded in the notebooks occurred eleven or more years ago and were proceedings of an executive government the members of which have been out of office for more than seven years, there was little ground for apprehension that such public disclosure of those proceedings as might follow inspection in this proceeding would injuriously affect the operations of governments in this country. He further submitted, by reference to what is alleged in paragraph 37(e) of the amended statement of claim, that the subject of the relevant deliberations recorded in the notebooks was substantially commercial.
The matters of historical fact, including what Miss Tinney has called "matters of current political debate" in paragraph 17 of her affidavit, about which the considerations indicated by the cases to which I have referred and the submissions of Mr Blowes call for knowledge, were not the subject of any evidence except that which is contained in that paragraph 17. I must be careful not to take into consideration my own beliefs, about those factual matters, which lie outside the ambit of what may be judicially noticed.
At least four members of the Cabinet during the period in respect of which the notebooks were used are presently members of the Commonwealth Parliament. The mining and exportation of uranium, the effects of mining on people, plants, animals, land and waters, the rights in relation to areas of land to be accorded by legislation and by the common law to groups of Aboriginal people who claim affinity with such areas, are now topics of public controversy in the discussion of which, and in the formulation of legislative and administrative policy about which, the principle political parties in this country are greatly exercised. And that was the case during the period in respect of which the notebooks were used. While I should assume, having regard to what appears in paragraph 37(e) of the amended statement of claim and to what little I may be permitted judicially to know about the economic value of uranium, that commercial considerations were among those which influenced the executive government of the Commonwealth in negotiating and making the impugned agreement with the applicant, I could not think those considerations to be predominant : the international an domestic political considerations must have been of at least equal weight.
On the other side of the scale which the court is required to hold in the balance are considerations springing from the "quite general concern that the course of justice should not be impeded" by the denial of access to relevant material, as well as "more particular considerations which flow from" the circumstances of the proceeding in which the balancing is to be undertaken : see Sankey v. Whitlam 142 CLR at 43, 56, 95-96. In a proceeding in which the applicant comes before the court as a representative of a number of citizens to seek curial redress for conduct, done in the name of the Australian community by high officers of state, which is alleged to have been wrongful and unconscionable, the considerations against impeding the course of justice by denial of access to relevant material are in my opinion to be regarded as strong.
Mr Graham QC, who appeared with Mr Robertson for the Commonwealth, submitted that no relevance to any issue in the proceeding had been shown to be likely to be found in any of the entries in the notebooks. The amended statement of claim showed, Mr Graham submitted, that the issues required an examination of what the Commonwealth had by its agents publicly done and had publicly or in the presence of representatives of the applicant said, in the light of a number of circumstances, of which none was private consultation among the Ministers or other officers of the Commonwealth. The decisions taken by Cabinet, the records of which in Cabinet minutes had been disclosed to the applicant, were perhaps relevant, but not the deliberations which had preceded those decisions, it was submitted.
In my opinion the submission cannot be accepted. It will be recalled that in paragraph 34 it is alleged that the impugned agreement was "inadequate, unreasonable and unfair" to the applicant, and particulars are furnished under that paragraph. Paragraph 42 alleges that in bringing about the agreement the Commonwealth acted unconscionably, the applicant being "at a substantial disadvantage to the Commonwealth" in the negotiation of the agreement and that disadvantage being known to the Commonwealth, as is alleged in paragraph 27. There is thus invoked the exercise of the equitable jurisdiction to set aside an unconscientious bargain. In Blomley v. Ryan (1956) 99 CLR 362 at 405-406 Fullagar J. said of the principles informing the exercise of the jurisdiction:

"One other general observation may be made before proceeding to the facts of the present case. The circumstances adversely affecting a party, which may induce a court of equity either to refuse its aid or to set a transaction aside, are of great variety and can hardly be satisfactorily classified. Among them are poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary. The common characteristic seems to be that they have the effect of placing one party at serious disadvantage vis-a-vis the other. It does not appear to be essential in all cases that the party at a disadvantage should suffer loss or detriment by the bargain. In Cooke v. Clayworth (1811) Ves.Jun.12 (34 ER 222), in which specific performance was refused, it does not appear that there was anything actually unfair in the terms of the transaction itself. But inadequacy of consideration, while never of itself a ground for resisting enforcement, will often be a specially important element in cases of this type. It may be important in either or both of two ways - firstly as supporting the inference that a position of disadvantage existed, and secondly as tending to show that an unfair use was made of the occasion. Where, as here, intoxication is the main element relied upon as creating the position of disadvantage, the question of adequacy or inadequacy of consideration is, I think, likely to be a matter of major, and perhaps decisive, importance. It will almost always, I think, be '. . . an important ingredient in considering whether a person did exercise any degree of judgment in making a contract, or whether there is a degree of unfairness in accepting the contract. . . .' (per Page Wood V.C. in Wiltshire v. Marshall (1886) 14 LT 396, at p 397)."

That and other authorities make it clear that, if circumstances are proved which show that, prima facie, unfair advantage was taken by the party in a position of advantage, a burden of proving that the transaction was nevertheless fair will be cast on that party. The ultimate question is "whether, having regard to all the circumstances, it was consistent with equity and good conscience that he should be allowed to enforce" the impugned agreement (99 CLR at 402). In many cases the unfairness of the transaction alleged will consist in one or two terms of a contract or some single circumstance of disadvantage to the complaining party. Blomley v. Ryan and Commercial Bank of Australia Ltd. v. Amadio (1983) 151 CLR 447 afford examples. But in this case the particulars under paragraph 34 of the amended statement of claim show that judgment of the fairness of the agreement will depend upon a critical examination of many complex questions in respect of which substantial evidence - and, it may confidently be expected, conflicting evidence - will be adduced. If in respect of some of those questions the court determines that in its judgment the provisions of the agreement were unfair, objectively considered, to the applicant, yet it will in my opinion be open to the Commonwealth to prove, if it can, that those questions were of such difficulty, and that the views which its Ministers and servants had taken on those questions at the time when the agreement was being negotiated were so honestly and reasonably held, that it was consistent with equity and good conscience that the Commonwealth should be allowed to enforce the agreement. In Burmah Oil Co. Ltd. v. Bank of England (1980) AC 1090 at 1115 Lord Wilberforce expressed the opinion that establishment of unconscionability must depend upon the objective facts, but Lord Keith ((1980) AC at 1136) disagreed. In relation to the several points of economic controversy in issue in that case it is not difficult to suppose that a determination by the court that an economic disadvantage imposed on Burmah Oil Co. Ltd. was objectively unfair would leave little room for a defence that the Bank of England reasonably believed that it was not. But in my opinion the particulars under paragraph 34 disclose subjects of controversy in which it is very likely that quite divergent opinions could be honestly and reasonably held. Records of Cabinet deliberations relating to the negotiation of the impugned agreement are likely to disclose whether any consideration was given to those subjects and, if it was, to disclose information relevant to an evaluation of the reasonableness and the honesty of the consideration given to those subjects by the persons who controlled the actions of the Commonwealth. I bear in mind that, the purpose of the note takers being solely to enable them "to reach agreement as to the terms of the outcomes reached", the extent of the information disclosed and the inferences which may reasonably be drawn from the contents of the notebooks may be insubstantial. But it must also be borne in mind that the information so disclosed may be correlated by the applicant's advisers with much other information presently available to them or hereafter before and during the trial becoming available to them, and may in that context afford much more substantial assistance to the applicant than it would if it were considered alone.

The probability is in my opinion strong that the entries in the notebooks relating to deliberations about the negotiation and the making of the impugned agreement will afford information by means of which the case of the applicant for rescission of the agreement as unconscientious may be advanced or the case of the Commonwealth against the grant of that remedy may be damaged. There is accordingly a public interest in favour of granting inspection of those entries a well as a public interest in favour of denying inspection. In my opinion the balance is clearly in favour of granting inspection to the legal representatives of the applicant, upon their undertaking not without the leave of the court to disclose to others what they learn by inspection.
It will, I hope, be apparent from what I have written that the entries will in my opinion afford information of the required kind by what they do not contain as well as by what they do contain. For that reason, the order will be for inspection of all entries concerning events which occurred before the impugned agreement was made and which relate to the agreement or to negotiation for it. And for that reason, and because the material in the court file, much less the evidence adduced for and against the motion, does not equip me to weigh the value to the applicant of the entries, I have not myself inspected them. Counsel for the Commonwealth did not invite me to inspect the entries, nor suggest that inspection would enlarge or intensify my perception of any of the considerations against granting inspection. And the orders I propose to make will preclude disclosure of the information afforded by the entries further than to the applicant's legal advisers until a judge of the court has had the opportunity to inspect the entries, if he should think fit.

I have given careful consideration to the difficulties which may arise when legal advisers have knowledge which they are not free to disclose to clients an witnesses, difficulties to which Wilcox J. has adverted in Jackson v. Wells (1985) 5 FCR 296 at 307-308 and Kenthal Australia Pty. Ltd. v. Minister for Industry, Technology and Commerce (1987) 14 FCR 90 at 96-97. (The applicant has already consented to orders restricting that freedom in relation to certain other documents of which inspection has been had.) But in my opinion there are cases in which the resolution of the conflict between the two public interests here in question is best achieved by affording inspection to legal advisers alone and deferring until a later time a decision as to what further disclosure shall be permitted. I think this is such a case. Not only does the court have, as Wilcox J. pointed out, the great benefit of informed submission by counsel for the party seeking to make forensic use of a document in support of that party's case, so that the court is placed in the best position to estimate the importance of the document, or of information derived from it, to that party's case. The closer to trial a decision is made about disclosure, the more likely it generally is that a just and fully informed balancing of the two public interests will be made, and particularly in a case such as this is, where uncertainty about questions of law and about the relative usefulness to a party's cause of many kinds of factual allegations has produced a statement of claim "unduly discursive and argumentative" (61 ALJR at 620). It may be that the appropriate time for a decision about further disclosure may not arrive until the trial has commenced. It may be that the appropriate time will follow hard upon inspection of the document by the party's legal advisers.
It may be that inspection of the entries will enable the applicant's advisers to advance grounds for further disclosure unrelated to the grounds upon which I rest the order now to be made for inspection by those advisers. If so, it will be in the public interest that any arguable ground available to the applicant should be placed before the court. But I do not give that possibility any place among the considerations in favour of making the order.
I will hear the parties as to the terms of the orders to give effect to my conclusions.
In case it be held that those conclusions are erroneous, it may be useful to say that I would in any event have ordered inspection of those entries which recorded any assertion as to what had before the agreement was made passed, whether orally or in written form, between representatives of the parties to the impugned agreement in the course of negotiation for the agreement or otherwise with respect to that negotiation or to that agreement. There could in my opinion be little injury to the public interest by disclosure of Cabinet proceedings in giving inspection of what the notebooks record of statements of historical facts, concerning which facts the parties' representatives and others able to give admissible evidence of them will be giving evidence at trial.
The other motion is for an order that the Commonwealth give discovery of "documents in the possession of the Office of the Supervising Scientist or the Department of Arts, Sports, the Environment, Tourism and Territories which relate to the application, operation, assessment and infringement during the period 3 November 1978 to date, of the environmental requirements imposed in relation to the Ranger Project."
The applicant alleges that the inadequacy, unreasonableness and unfairness to the applicant of the impugned agreement consists in, inter alia, the omission therefrom of terms the observance of which would have obviated or at least diminished the harmful effects, of mining for uranium on the Ranger land, on people, plants, animals, land and waters : see paragraphs (b)(i), (b)(ii), (b)(v), (b)(vi) and (b)(vii) of the particulars under paragraph 34 of the amended statement of claim. The documents of which discovery is sought may be expected to contain information as to whether, and in what way, the mining of uranium on the Ranger land has after the making of the agreement caused any such harmful effects, and, if it has, what mitigation of the harm human intervention has achieved. Mr Graham denied that such documents were discoverable on the ground that knowledge of what may perhaps be generically described as environmentally relevant events after the making of the agreement afforded no means of evaluating the adequacy, reasonableness or fairness of a course of action planned before the making of the agreement. That evaluation must, as Mr Graham pointed out, be made by reference to the information available to the Commonwealth before the agreement was made. But information about events which happened after the course of action has been taken, and information about the contribution which the course of action made to cause those events, is commonly useful in reaching a conclusion whether those events were foreseeable by a person exercising reasonable care and skill at the time when the course of action was planned. It is not a sound objection to taking information into consideration, if the information is likely to be relevant to a decision to be made, that the information may be, or that it often is, misused in the making of decisions of that kind. I think it probable that information contained in the documents of which discovery is sought will be relevant to decisions by the court about the reasonableness of the course of action planned by the Commonwealth on and before 3 November 1978 in respect of "environmental standards" and "environmental ... procedures" for the Ranger land, concerning which it is alleged in particular (b)(v) under paragraph 34 that the impugned agreement failed to make adequate provision.
Mr Graham drew my attention to the provisions of s.31 of the Environment Protection (Alligator Rivers Region) Act 1978. The Ranger land is within the area of land in relation to which that Act applies. Section 31 provides:
"(1) Sub-section (2) applies to every person who is or has been the Supervising Scientist or a member of the staff assisting the Supervising Scientist.
(2) Subject to sub-section (3), a person to whom this sub-section applies shall not, either directly or indirectly, except in the performance of a duty under or in connexion with this Act, make a record of, or divulge or communicate to any person, any information concerning the affairs of any other person acquired by him by reason of his office or employment under or for the purposes of this Act.
Penalty: $1,000 or imprisonment for 6 months, or both.
(3) Sub-section (2) does not prevent the communication of information or the production of a document by the Supervising Scientist or a member of the staff assisting the Supervising Scientist authorised by him for that purpose -
(a) to the Minister, to the Permanent Head of the Department that deals with matters arising under this Act or to an officer of, or an employee in, that Department approved by the Permanent Head of that Department; or
(b) to a person to whom, in the opinion of the Minister, the public interest that the information be communicated or the document produced.
(4) Neither the Permanent Head of the Department that deals with matters arising under this Act nor an officer of, nor an employee in, that Department approved by him for the purposes of sub-section (3) shall, either directly or indirectly, except for the purpose of advising the Minister in connexion with this Act, make a record of, or divulge or communicate to any person, any information communicated to him by the Supervising Scientist or by a member of the staff assisting the Supervising Scientist, being information concerning the affairs of another person acquired by the Supervising Scientist or by a member of that staff by reason of his office or employment under or for the purposes of this Act.
Penalty: $1,000 or imprisonment for 6 months, or both.
(5) Nothing in this section shall be taken to affect the operations of section 9 of the Ombudsman Act 1976 or the operation of any similar provision in a law of the Northern Territory that confers functions on a person similar to functions conferred on the Ombudsman by that Act.
(6) A reference in this section to a member of the staff assisting the Supervising Scientist is a reference to a member of the staff referred to in sub-section 26(1), a person engaged under sub-section 26(4) or any other person to whom a delegation has been given under sub-section 35(1)."
The Environment Protection (Alligator Rivers Region) Act 1978 provides for the appointment of a Supervising Scientist for the Alligator Rivers Region ("the Supervising Scientist" by definitional provision), confers on him a number of functions and powers, directs him to comply with the directions given to him from time to time by the Minister administering the Act in relation to the performance of those functions or the exercise of those powers, provides that staff required for carrying out or giving effect to the Act shall be persons appointed or employed under the Public Service Act 1922, and confers on the Supervising Scientist all the powers of a Secretary under the latter Act in respect of that staff. Among the functions conferred on the Supervising Scientist by s.5 of that Act are:
"(a) to devise and develop programs for research in to, and programs for the collection and assessment of information relating to, the effects on the environment in the Alligator Rivers Region of uranium mining operations in the Region;
(b) to co-ordinate, and supervise, the carrying out of programs referred to in paragraph (a);
(c) to devise and develop, and to promote and assist in the devising and development of -
(i) standards, practices and procedures in relation to uranium mining operations in the Region for the protection of, or in so far as those standards, practices and procedures affect, the environment in the Region; and
(ii) measures for the protection and restoration of the environment in the Region from the effects of uranium mining operations in the Region:
(d) to co-ordinate, and supervise, the implementation, in relation to uranium mining operations in the Region, of requirements of or having effect under prescribed instruments in so far as those requirements relate to any matter affecting the environment in the region;
........ ........ ........ ........ ........ .......
(g) to do anything incidental or conducive to the performance of any of the foregoing functions."
Section 27 of the Act provides:
"(1) The Supervising Scientist may, by notice in writing served either personally or by post on a person, require the person -
(a) to furnish to him, by writing signed by that person, the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, such information in the possession of the person as is specified in the notice; or
(b) to furnish to him, within the time and in the manner specified in the notice, such documents in the possession of the person as are specified in the notice,
being information that is or documents that are required for the performance of his functions or the performance of the functions of the Institute or the exercise of his powers (including his powers in relation to the management of the Institute).
(2) A person shall not, in purported compliance with a notice served on hib under sub-section (1), knowingly furnish information that is false or misleading.
Penalty: $1,000."
Mr Graham submitted that the phrase in s.31(2) ",except in the performance of a duty under or in connexion with this Act," did not authorise a discovery of documents in a proceeding which has so indirect and remote a connection with the Act as this proceeding has. I accept that submission, supported as it is by the reasoning upon a similar phrase in Rowell v. Pratt (1938) AC 101. But there is authority that in a similar provision, s.16(2) of the Income Tax Assessment Act 1936, the expression "any person" does not comprehend a court : Canadian Pacific Tobacco Co. Ltd. v. Stapleton (19152) 86 CLR 1 at 6; Commissioner of Taxation v. Nestle Australia Ltd. (1986) 12 FCR 257 at 262. In the latter case a Full Court of this court on that ground held that s.16(2) did not preclude the giving of inspection, in the course of discovery in a proceeding, of a document which contained information of the description specified in that sub-section.
The relevant prohibition expressed in s.31(2) is of divulging or communicating any information concerning the affairs of any other person acquired by any of those to whom the sub-section applies by reason of his office or employment under or for the purposes of the Act. Compliance by the Commonwealth with an order for discovery of the kind now sought would not involve a breach of the prohibition : that would occur, if at all, when inspection of some of the documents discovered was given. Mr Graham raised the question of the operation of s.31 because the court might wish to give consideration to the question when formulating the terms of any order for discovery of documents likely to contain information of the kind which is specified in s.31(2). Mr Graham also made it clear that the Commonwealth did not seek to take advantage of any submission that a document in the custody of the Supervising Scientist was not discoverable by the Commonwealth because it was not a document "in the possession, custody or power of" the Commonwealth.
In my opinion neither s.31(2) nor s.31(4) prohibits the giving of inspection, in compliance with an order for inspection under O.15 R.11, of a document discovered under that Order which contains information of the description specified in each of those sub-sections. It is true, as Mr Graham pointed out, that in Commissioner of Taxation v. Nestle, supra, there is no express reference to the circumstance that inspection in the course of a curial discovery process involves, in a literal sense, not a divulgement or communication of the specified information t the court, but a divulgement and communication to the other party's legal practitioner, who no doubt falls within the ordinary meaning of the words "any person" in the sub-sections. But it is not to be thought that the circumstance was overlooked by the Full Court in Nestle's Case. In my opinion I am constrained by the authority of that case to hold that the sub- sections (2) and (4) of s.31 do not preclude the giving of inspection, in the course of discovery in the proceeding, of a document which contains information of the description specified in those sub-sections.
I will make an order for discovery of documents of the classes which are indicated by the terms of the motion. I will hear the parties concerning the terms of the order.

[1990] FCA 382

06 AUGUST 1990