Rankine v State of South Australia - [2022] SASCA 18

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
RANKINE v STATE OF SOUTH AUSTRALIA
[2022] SASCA 18
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Doyle)
17 March 2022
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION OF DOCUMENTS - GROUNDS FOR RESISTING PRODUCTION - PRIVILEGE - PUBLIC INTEREST IMMUNITY
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - FURTHER APPEAL TO COURT OF APPEAL
By Notice of Appeal dated 4 January 2022, the applicant sought leave to appeal against the decision of a Judge of this Court, refusing him leave to appeal against an interlocutory order made by a Magistrate dismissing, in part, the applicant’s application for production of unredacted copies of a number of documents, on the basis that the redacted content was either irrelevant or subject to a claim of public interest immunity.
The applicant contended that the Judge erred by failing to inspect the subject documents before refusing to grant leave to appeal the Magistrate’s decision.
Held (per the Court):
1. The application for leave to appeal is dismissed.
Adelaide Brighton Cement v The State of South Australia & Anor (1999) 75 SASR 209; Air Canada v Secretary of State for Trade [1983] 2 AC 394; Alister v The Queen (1984) 154 CLR 404; Casley-Smith v District Council of Stirling (1989) 51 SASR 447; Commonwealth v Northern Land Council (1993) 176 CLR 604; Conway v Rimmer [1968] AC 910; Medical Board of SA v Fisher & Ors (2000) 76 SASR 242; Rankine v The State of South Australia [2021] SASC 121; Robinson v South Australia (No 2) [1931] SASR 511; Sankey v Whitlam (1978) 142 CLR 1; State of Victoria v Brazel (2008) 19 VR 553; Trade Practices Commission v Queensland Aggregates Pty Ltd (No 2) (1981) 51 FLR 364; Zarro v Australian Securities Commission (1992) 36 FCR 40, discussed.

RANKINE v STATE OF SOUTH AUSTRALIA
[2022] SASCA 18
Court of Appeal – Civil: Livesey P, Lovell and Doyle JJA

THE COURT: The applicant, Mr Rankine, seeks leave to appeal against the decision of a single Judge refusing him leave to appeal against an order made by a Magistrate concerning the production of documents. Mr Rankine required leave from the single Judge because the Magistrate’s order was an interlocutory one.
Whether leave to appeal should be granted has been expressed in different ways but, in essence, the question is whether this Court is satisfied that:
(a)the decision is attended with sufficient doubt to warrant its reconsideration on appeal, or raises an issue of principle or general importance, and
(b)allowing the decision to stand would work a substantial injustice to the applicant.
These two limbs are typically treated as cumulative requirements for a grant of leave to appeal, but ultimately the Court will act in the interests of justice.
In considering whether it is in the interests of justice to grant leave to appeal, it is significant both that Mr Rankine’s proposed appeal to this Court would be a second appeal, and that the decision sought to be appealed is one that relates to a matter of practice and procedure, rather than any determination of Mr Rankine’s substantive rights. For sound and obvious reasons, the courts have demonstrated a reluctance to grant leave to appeal in cases such as these.
Mr Rankine is pursuing a personal injuries claim in the Magistrates Court arising out of an injury he sustained during a physical altercation with another prisoner whilst they were both incarcerated at the Yatala Labour Prison. Mr Rankine alleges that the respondent breached its duty of care by failing to have him seen by a qualified medical practitioner for 19 days before adequate medical treatment was eventually provided.
Mr Rankine sought discovery and production of a range of documents. These concerned the documented procedures and training manuals of the Department of Correctional Services and the SA Prison Health Service concerning the steps required to be taken when it is known that an inmate has suffered injury in the course of imprisonment.
It is not presently necessary to document in any detail the extensive procedures embarked upon by the Magistrate in order to determine Mr Rankine’s interlocutory application for discovery and production. Ultimately, the application was determined by having regard to whether various of the documents were at least of some relevance, as well as whether in respect of those documents, the respondent had a good claim for public interest immunity pursuant to the principles described in Adelaide Brighton Cement v The State of South Australia,[1] as endorsed by the Full Court in Medical Board of South Australia v Fisher.[2]
[1] Adelaide Brighton Cement v The State of South Australia & Anor (1999) 75 SASR 209.
[2] Medical Board of South Australia v Fisher & Ors (2000) 76 SASR 242.
On the question of public interest immunity both the Magistrate and the single Judge considered the decision of the Victorian Court of Appeal in State of Victoria v Brazel.[3] In that case, the plaintiff was a long-term prisoner in a high security unit who sued the prison authorities for alleged negligence in failing to prevent an assault by a fellow prisoner. The assault occurred 10 years before the suit. Public interest immunity was claimed over a schematic plan of the high security unit. It was common ground that the schematic plan was outdated. In any event, it was also common ground that the plaintiff already knew about all of the relevant security protocols which were also the subject of the claim for public interest immunity. In that context the Court of Appeal rejected the claim for public interest immunity. That case was distinguished by the Judge in this case because the information the subject of the public interest immunity claim in this case is “current” and there was no evidentiary basis to support a finding that Mr Rankine otherwise knew the information the subject of the immunity claim.
[3] State of Victoria v Brazel (2008) 19 VR 553 (Brazel).
Indeed, the Judge emphasised that the Court of Appeal in Brazel accepted that it “cannot be doubted that there is a powerful public interest in the maintenance by the State of a secure prison system for the benefit of all concerned”. Moreover, there is a “strong public interest in ensuring the safety of those who are imprisoned, and of those who work, in our prisons”.[4] The Court of Appeal in that case accepted that a narrow claim of public interest immunity could properly be maintained with respect to specific prison security information which was shown to be both current and highly sensitive.
[4] State of Victoria v Brazel (2008) 19 VR 553, 562 (Maxwell P, Buchanan and Vincent JJA).
The Judge commenced his consideration of the merits of the proposed appeal by observing that the applicant’s proposed ground(s) of appeal were difficult to identify, and in any event lacked particularity. They amounted to little more than an assertion that the Magistrate’s decision denying him access to the redacted information was “prejudicial” and “oppressive”.
After reviewing the Magistrate’s approach and reasoning to the issues arising on the application for access to documents, the Judge refused to grant leave to appeal because he was not satisfied that there was any error in the approach of the Magistrate. He was not satisfied that any question of general principle arose. In circumstances where he saw no reason to doubt the correctness of the decision of the Magistrate, he did not consider that any substantial injustice would be caused to the appellant if the order made by the Magistrate were allowed to stand.
The proposed grounds of appeal in this case are in the following terms:
1.I make claim application Judge Stanley’s order 19/11/2021 is obstruction in the course of justice too a fair and impartial hearing before the court.
2.It is prejudicial too a fair and impartial hearing before the court of appeal.
3.Not reviewing documents in contest are and oppressive act that disregarding the duty of the court of appeal too review all elements of documents and Analysing their content is an Authority acting in Breach of their Authority in effect prejudicial and oppressive too and in procedural fairness section 199 of the civil court Rules.
This case presents particular challenges where the applicant is unrepresented and has an incomplete appreciation of the relevant principles and practices. Nonetheless it is clear that the Magistrate and Judge went to considerable lengths to carefully assess the applicant’s contentions, with the assistance of fair and balanced submissions from the respondent.
It can be seen that one of the issues raised by the applicant is the failure of the Judge to inspect the documents. As to that issue, the Judge said:[5]
The respondent accepts that while it is open to me to inspect the unredacted version of the contested documents I should decline to do so unless I find there was error in the approach of the magistrate. I accept this submission.
[5] Rankine v The State of South Australia [2021] SASC 121, [40] (Stanley J).
When determining an objection based on public interest immunity, the Court is concerned to come to a conclusion as to where the balance of public interest lies:[6]
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,[7] 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.
[6] Sankey v Whitlam (1978) 142 CLR 1, 38-39 (Gibbs ACJ).
[7] Conway v Rimmer [1968] AC 910.
As for inspection, it has been said that the Judge should not look at the documents unless persuaded that inspection would be likely to demonstrate that production will be ordered. [8] The Court must have “some concrete ground for belief which takes the case beyond a mere ‘fishing’ expedition”.[9] Where the balance lies in favour of production, the Court will generally inspect so as to satisfy itself that production is necessary:[10]
… the power of the court to inspect the document privately is clear, and once a court has decided, notwithstanding the opposition of a Minister, that on balance the document should probably be produced, it will sometimes be desirable, or indeed essential, to examine the document before making an order for production: see Conway v. Rimmer.[11] However, where the objection is to the disclosure of a document because it belongs to a class, and the Minister, being represented, does not suggest that there is anything in its contents that ought to be withheld from production, there will not always be the same need to examine the document before ordering its production if the objection is overruled.
[8] Alister v The Queen (1984) 154 CLR 404, 414-415 citing Burmah Oil Co Ltd v Bank of England [1980] AC 1090, 1129, 1142; Air Canada v Secretary for Trade [1983] 2 AC 394, 439.
[9] Air Canada v Secretary of State for Trade [1983] 2 AC 394, 439 (Lord Wilberforce).
[10] Sankey v Whitlam (1978) 142 CLR 1, 46 (Gibbs ACJ).
[11] Conway v Rimmer [1968] AC 910, 953 (Lord Reid), 979 (Lord Hodson), 981-982 (Lord Pearce), 995 (Lord Upjohn), cf p 971 (Lord Morris).
The Court will not exercise the power to inspect as a matter of course, at least in relation to documents within a class that is often recognised as immune from disclosure, such as documents recording cabinet deliberations.[12] Relevant considerations will include the nature of the objection and the reasons given for it; the Court will check whether the objection is taken in proper form by an appropriate person who has inspected the documents personally.[13]
[12] Commonwealth v Northern Land Council (1993) 176 CLR 604, but contrast Casley-Smith v District Council of Stirling (1989) 51 SASR 447, 471-472 (Matheson J).
[13] Conway v Rimmer [1968] AC 910, 988 (Lord Pearce).
Where the Court entertains doubt about where the balance of public interest lies, it should generally inspect the documents.[14] That will be so even where the reasons for the objection are in proper form and sufficiently stated.[15] Of course if the reasons are not clearly expressed, the Court will “have to see the documents before ordering production”.[16]
[14] Trade Practices Commission v Queensland Aggregates Pty Ltd (No 2) (1981) 51 FLR 364; Zarro v Australian Securities Commission (1992) 36 FCR 40, 49 (Lockhart J), 55 (Ryan J), 66 (Gummow J); Casley-Smith v District Council of Stirling (1989) 51 SASR 447, 471-472 (Matheson J).
[15] Robinson v South Australia (No 2) [1931] SASR 511; Sankey v Whitlam (1978) 142 CLR 1.
[16] Conway v Rimmer [1968] AC 910, 953 (Lord Reid), 979 (Lord Hodson) “in a proper case”, 981-982, 984 (Lord Pearce) “when necessary … inspections are inconsistent with a denial of ultimate inherent power in the court”, 995-996 (Lord Upjohn).
Whether it is necessary to inspect the documents considered by the primary court on an appeal by way of rehearing will invariably depend on the nature of the challenge made to the primary court’s decision. For example, if the challenge concerns an error of law or the characterisation of the class into which the documents are placed, it may be that no inspection is required. By contrast if, as here, what is challenged appears to be the propriety of the claim, it will be difficult to determine the appeal without inspecting the documents because this was the basis for the primary court’s decision.
However, in the present case, the Judge was confronted with an application for leave to appeal, as opposed to the appeal itself. His Honour was therefore required to address the matters identified in the two limbs of the test for leave to appeal set out earlier in these reasons.
As to the first limb, the Judge was not satisfied that the proposed appeal raised any issue of general principle or importance, or was attended by sufficient doubt to warrant appellate consideration.
We agree with the Judge that Mr Rankine did not, and has not, identified any issue of general principle or importance. With respect, the Magistrate accurately summarised the relevant principles and adopted a perfectly orthodox and appropriate approach to Mr Rankine’s application for access. There is no basis to doubt her Honour’s conclusion that there was a potential head of public interest immunity.
It follows that the only complaint that could be pursued on appeal would be that her Honour erred in her application of the relevant principles to the particular documents (and redacted passages in those documents) sought by Mr Rankine. However, Mr Rankine needed to do more than merely assert error. The first limb of the test for leave to appeal required that he demonstrate some basis for doubting the Magistrate’s decision. By analogy to the approach to be taken to the inspection of documents on an appeal, there may be some cases in which inspection is warranted on an application for leave to appeal. Alternatively, there may be some cases in which sufficient doubt can be established without access to the documents. However, we do not accept that the mere assertion of error will always require inspection of the relevant documents on an application for leave to appeal. Whether it is necessary or appropriate to inspect will depend upon the circumstances.
In the present case, the Judge had the benefit of detailed affidavit evidence that articulated the basis for the claim for public interest immunity with the level of precision and particularity contemplated by the authorities. His Honour had the benefit of detailed and careful reasons from the Magistrate which not only set out the relevant general principles, but which descended to a document-by-document description of how those principles were applied to the individual documents. In those circumstances, something more than a mere assertion of error was required in order to establish the requisite doubt about the Magistrate’s decision which might warrant an inspection of the documents.
To the extent Mr Rankine attempted to demonstrate error in the affidavit and reasons of the Magistrate, he did so at a very general level; asserting that the statements and assumptions as to what he knew, and hence what remained confidential or sensitive so far as he is concerned, were “ridiculous” or unsustainable given his significant knowledge and experience of prison systems and operations. While we accept that Mr Rankine’s knowledge and experience of prison was a relevant consideration, we do not accept that this was overlooked by the Magistrate or the Judge, or that this is otherwise a basis to doubt the correctness of the decision below.
In our view, the Judge was correct to conclude that Mr Rankine had not made out the first limb of the test for leave to appeal.
Further, and in any event, the Judge concluded that Mr Rankine failed to establish that allowing the Magistrate’s decision to stand would result in a substantial injustice to the appellant. In other words, the Judge concluded that Mr Rankine failed to satisfy the second limb of the test for leave to appeal. We see no basis to impugn this conclusion. While the result of the decision was to deny Mr Rankine access to documents which might have assisted him in the presentation of his claim, the decision did not substantially affect, let alone determine, any of his substantive rights. That is, the Magistrate’s ruling on public interest immunity is an interlocutory one. It follows that the ruling, or at least aspects of it, may be open to reconsideration later in the proceedings, including at trial. As public interest immunity depends upon a balancing exercise, one part of which involves a consideration of the degree of relevance of the relevant document or information, it may be that a particular document (or a redacted passage) will later assume a greater forensic significance, particularly once the trial is underway. A line of questioning or other documents may reveal a degree of relevance in a particular document that warrants reconsideration of the Magistrate’s public interest immunity ruling.
In circumstances where Mr Rankine has not established error in the Judge’s conclusion that he had not made out either of the limbs of the test for leave to appeal, there is no basis for granting him leave to bring a second appeal to this Court.

The application for leave to appeal must be dismissed.