Rankine v The State of South Australia - [2021] SASC 121

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Civil)
RANKINE v THE STATE OF SOUTH AUSTRALIA
[2021] SASC 121
Judgment of the Honourable Justice Stanley
16 November 2021
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - GENERALLY - CLASSIFICATION: FINAL OR INTERLOCUTORY - GENERAL PRINCIPLES
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION OF DOCUMENTS
This is an appeal against an interlocutory decision of a Magistrate to dismiss in part the appellant’s application for production of unredacted copies of a number of documents disclosed by the respondent in an action for damages for personal injury allegedly suffered by the appellant while a prisoner at Yatala Labour Prison. The Magistrate made a number of rulings in relation to the production of documents which culminated in interlocutory orders dated 22 June 2021, being the orders subject to this appeal, following the publication of reasons for what she characterised as her final decision on 13 April 2021.
Held, per Stanley J:
1. Permission to appeal is refused.
2. Parties to be heard on costs.
Public Interest Disclosure Act 2018 (SA); Uniform Civil Rules 2020 (SA) r 213.1(1)(a), referred to.
Hardel Proprietary Limited v Burrell and Family Proprietary Limited (2009) 103 SASR 408; Harris Scarfe Ltd (Receivers & Managers Appointed) (In Liq) v Ernst & Young (No 10) [2006] SASC 325; Adelaide Brighton Cement Ltd v South Australia and Anor (1999) 75 SASR 209; Medical Board of SA v Fisher (2000) 76 SASR 242, applied.
State of Victoria v Brazel (2008) 19 VR 553; Dupont v Chief Commissioner of Police Fam (2015) 295 FLR 283, distinguished.
Rankine v The State of South Australia [2020] SASC 243; Morgan v Workcover Corporation of South Australia [2011] SASC 113; Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61, considered.

RANKINE v THE STATE OF SOUTH AUSTRALIA
[2021] SASC 121
STANLEY J
Introduction

This is a purported appeal[1] from the decision of a magistrate to dismiss in part the appellant’s application for production of unredacted copies of a number of documents disclosed by the respondent in an action for damages for personal injury allegedly suffered by the appellant while a prisoner at Yatala Labour Prison. In respect of the redacted parts of the documents that were not ordered to be produced to the appellant (the contested documents), the magistrate upheld the respondent’s claim that the redacted content was either irrelevant to the claim or the subject of public interest immunity.
[1] For reasons I will explain the purported appeal is from an interlocutory judgment. Accordingly, leave to appeal is required pursuant to UCR 2020 213.1(1)(a).
The magistrate made a number of rulings in relation to the production of documents. While the appellant’s notice of appeal filed on 16 March 2021 (FDN 1) purports to appeal against the magistrate’s indicative rulings published on 12 February 2021, I accept the respondent’s submission that the appeal should be treated as an application for leave to appeal against paragraph 3 of the magistrate’s orders made on 22 June 2021 following the publication of reasons for what she characterised as her final decision on 13 April 2021.
For the reasons that follow, as the appellant’s ground(s) of appeal (and other filed documents) fail to identify error in the approach of the magistrate, leave to appeal should be refused.
Background
The appellant was imprisoned at Yatala. In interlocutory hearings the magistrate clarified with the appellant that his claim is for damages for pain and suffering which is alleged to have occurred during a 19-day period between sustaining a knee injury in an incident involving a physical altercation with another prisoner and obtaining adequate medical treatment. In particular, the appellant alleges that the respondent breached its duty of care by failing to have him seen by a qualified medical practitioner following the incident.
At a directions hearing on 10 June 2020, a magistrate, who at that time had management of the proceedings, ordered that the respondent make further disclosure within 21 days of any Department of Correctional Services (DCS) documented procedures, or DCS training materials, regarding the obligations of the employees of DCS and SA Prison Health Service on being made aware of an injury suffered by an inmate during the course of an inmate’s imprisonment.
On 1 July 2020 the respondent filed a third list of documents as a consequence of the order made on 10 June 2020 (the list of documents). Schedule 2 of the list of documents identified documents that the respondent claimed were protected from production on the basis of public interest immunity.
On 5 November 2020 an interlocutory hearing before the magistrate proceeded in respect of a number of issues, including the appellant’s oral application to inspect the documents the subject of the respondent’s public interest immunity claim. At the hearing the respondent advised that it intended to amend its claim of public interest immunity so as only to claim privilege over portions of the documents that comprised items 1.2.2 to 1.2.29 of schedule 2 of the list of documents. Directions were made to facilitate further argument at a later date.
On 2 December 2020 the respondent’s solicitor made available to the appellant, in electronic form, redacted versions of items 1.2.2 to 1.2.29 of schedule 2. Subsequently, a hard copy was made available. Only parts of each document identified in items 1.2.2 to 1.2.29 of schedule 2 of the list of documents were redacted.
On 7 December 2020 the respondent filed and served a supporting affidavit of Angela Gransden, an officer of DCS. Ms Gransden’s affidavit sets out the basis for the redactions and provided a paginated bundle of the documents.
On 11 December 2020 I heard a previous appeal by the appellant in respect of an interlocutory decision of a magistrate to set aside a subpoena to produce documents requested by the appellant.
On 23 December 2020 leave to appeal was refused and the appeal dismissed.[2]
[2] Rankine v The State of South Australia [2020] SASC 243.
On 12 January 2021 the magistrate heard argument in relation to the redacted documents. The magistrate decided to inspect the unredacted copies of the documents and foreshadowed providing indicative rulings to the parties before making final orders.
On 12 February 2021 the magistrate published indicative rulings (the indicative rulings). In the indicative rulings[3] the magistrate identified the two grounds on which the respondent sought to uphold the redactions over the masked content of the contested documents, namely, relevance and public interest immunity.
[3] Reasons for indicative rulings of Magistrate Vozzo delivered 12 February 2021 at [4].
In the indicative rulings[4] the magistrate confirmed that she had reviewed the content of each redaction. The magistrate attached a schedule to the indicative rulings that identified whether the redactions were justified. The magistrate also raised several queries including identifying inconsistencies in some of the redactions.
[4] Reasons for indicative rulings of Magistrate Vozzo delivered 12 February 2021 at [26].
Following consideration of the indicative rulings the respondent corrected the inconsistencies in redactions and produced modified redacted versions of the contested documents to the appellant giving effect to the magistrate’s rulings where redactions were held not to be justified.
On 19 February 2021 the magistrate heard further argument in relation to the balance of the redacted documents and reserved her decision on the final rulings. The magistrate also determined that she would further inspect the redacted parts of the contested documents taking into account the further submissions made.
On 13 April 2021 the magistrate published reasons for her final decision (final decision) together with a revised schedule making rulings in respect of each redacted part of the contested documents. The final decision has to be read with the indicative rulings. The magistrate’s approach was first to determine whether each redacted part of the contested documents was directly relevant, peripherally relevant or irrelevant to the pleaded issues.[5] Second, where the redacted part was held to be directly or peripherally relevant, the magistrate considered whether the redaction was properly the subject of a claim for public interest immunity.[6]
[5] See final decision at [5], [10]-[14].
[6] See final decision at [9], [15]-[25].
The final decision identified certain additional portions of the contested documents where the redactions were held not to be justified either because the documents are irrelevant or the subject of a proper claim of public interest immunity. By letter dated 24 May 2021 the respondent’s solicitor identified a couple of final rulings requiring clarification where there were apparent inconsistencies in the final rulings in respect of the same content in different documents.
On 22 June 2021 the magistrate made orders (the orders) to give effect to her indicative rulings and final decision. The magistrate varied some of the final rulings in respect of the identified inconsistencies and ordered, to the extent that the respondent had not already done so, that it produce to the appellant revised redacted copies of the contested documents consistent with the final decision (as varied). The respondent produced those varied redacted documents to the appellant. By paragraph 3 of the orders, the appellant’s oral application for unredacted copies of the contested documents (being numbered 1.2.2 to 1.2.29 of the second schedule of the list of documents) was otherwise dismissed with no order as to costs.
The appellant’s claim is not yet listed for trial. A further directions hearing is listed in the Magistrates Court on 8 November 2021.
Leave to appeal
There is an anterior issue whether leave is required to pursue the appeal. UCR2020 213.1(1)(a) provides that leave to appeal is required against an interlocutory decision by a judicial officer of the Magistrates Court.
At issue is whether the indicative reasons, final decision and orders relating to the obligation to produce disclosed documents prior to trial are interlocutory. The relevant test as to whether an order is final or interlocutory is enunciated in Hardel Proprietary Limited v Burrell and Family Proprietary Limited.[7] where Kourakis J (as he then was), with whom Nyland and David JJ agreed, explain the difference between an interlocutory and a final order, said:[8]
The distinction, I think, also explains why in some cases different orders made on the same application may be interlocutory or final depending on the result. An order granting an application for summary judgment is a final order, because it finally disposes of the action by a judgment which creates a new charter governing the substantive rights of the parties. However, an order dismissing an application for summary judgment merely decides that the procedure by which the controversy will be determined will be the ordinary trial procedures of the Court, and not the summary procedure that the party attempted to invoke.
[7] [2009] SASC 77, (2009) 103 SASR 408.
[8] [2009] SASC 77 at [38], (2009) 103 SASR 408 at 422.
However, in Dupont v Chief Commissioner of Police[9] the Full Court of the Family Court took a contrary view, as follows:[10]
… we are inclined to the view that an appeal in relation to a subpoena for the production of documents subject to a claim of public interest immunity should be treated as a final order and not require leave. This is because an order to produce or inspect material would have a final effect on the public interest immunity claim. Although an order which upheld the claim would not, it would be perverse to require leave in one situation but not the other.
[9] Fam [2015] CAFC 64 (2015) 295 FLR 283.
[10] Fam [2015] CAFC 64 at [87], (2015) 295 FLR 283 at 300.
Even if it is accepted that a ruling disallowing a claim for public interest immunity is a final order, it is not “perverse” to characterise a ruling upholding such a claim as interlocutory. A ruling that public interest immunity exists at a particular time is capable of being revisited, for example, by reason of future developments in the proceedings or changes in circumstances. Fundamentally, such a ruling is not final in the sense that it “finally settles the controversy which is the subject matter of the action”.[11]
[11] See Hardel Pty Ltd v Burrell & Family Pty Ltd [2009] SASC 77 at [35], (2009) 103 SASR 408 at 422 [35].
It follows that the appellant is seeking to appeal an interlocutory order. Accordingly, leave to appeal is required. The relevant test for a grant of leave to appeal is well established. Leave will only be granted to appeal against an interlocutory order where the Court is satisfied that the decision sought to be impugned is either wrong or attended with sufficient doubt to warrant its reconsideration on appeal and it has the effect of working a substantial injustice on the applicant.[12] Leave will usually only be granted for an appeal against an interlocutory order if a question of general principle arises.[13]
[12] Morgan v Workcover Corporation of South Australia [2011] SASC 113 at [6]-[7].
[13] Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61 at [3].
Accordingly, I turn to consider whether the appellant has demonstrated error on the part of a magistrate involving a question of general principle which occasions him a substantial injustice. It is convenient to commence with the magistrate’s reasons.
The Magistrate’s reasons
The indicative ruling 12 February 2021
On 12 January 2021, I reserved my decision on the applicant’s oral application for production of unredacted copies of documents numbered 1.2.2 to 1.29 of the respondent’s Third List of Documents (Contested Documents). I informed the parties that I intended to inspect the unredacted copies of the Contested Documents having regard to the foreshadowed amended defence, and provide my indicative rulings to the parties before making final orders.
My indicative rulings are set out in the attached table. I will provide more detailed reasons of my final decision after hearing further from the parties on the indicative rulings. The following is not an exhaustive statement of my reasoning but provides context for the indicative rulings.
Basis of redaction
The respondent objects to the production of the redacted content of the Contested Documents on the basis that those parts are irrelevant, confidential/sensitive and if revealed, harmful to the public interest. The respondent relies on an affidavit of Angela Yvonne Gransden affirmed on 7 December 2020 (FDN 41).
The respondent has made redactions to the Contested Documents on the basis that:
•     it is accepted practice to redact confidential sensitive parts of documents where those parts are irrelevant to the pleaded issues; and
•     further, in the alternative, public interest immunity, the cause of the likely harm from disclosure that would be suffered to the public interest, being the public interest in the maintenance by the State of a secure prison system and in ensuring the safety of those who are imprisoned, and of those who work, in the State’s prisons.
The Contested Documents comprise some 365 pages discovered pursuant to an order made on 10 June 2020 requiring the respondent to make discovery of any Department of Correctional Services (DCS) documented procedures, or DCS training materials, regarding the obligations of the employees of DCS and SA Prison Health Services (SAPHS) on being made aware of an injury suffered by an inmate during the course of that inmate's incarceration.
A redacted copy of the Contested Documents is exhibited to Ms Gransden’s affidavit as ‘AG-1’. It is apparent from the face of ‘AG-1’ that a substantial portion of the content of the Contested Documents remains unredacted.
Approach to review
My approach to the review of the unredacted copy of Contested Documents was to firstly consider whether the redacted content of each document is directly relevant to an issue in dispute. If not directly relevant, then I propose to uphold the respondent’s objection to production of unredacted content of the document on that basis alone.
If the redacted content is directly relevant, I considered the respondent’s objections based on public interest immunity.
Issues in dispute
By Claim filed on 17 June 2019, the applicant seeks damages in the amount of $20,000 for pain and suffering arising from an alleged failure by prison authorities to provide or arrange adequate medical attention and treatment for him following a physical altercation with another prisoner at Yatala Labour Prison on 10 April 2019 (Incident). At a hearing on 5 November 2020, the applicant confirmed that his claim for damages is limited to the pain and suffering which occurred during the 19-day period between sustaining the injury from the Incident and obtaining what the applicant considered to be adequate medical attention and treatment.
In substance, the applicant alleges that the respondent owed a duty of care to provide him with adequate medical attention and treatment during those 19 days and that he suffered excessive pain from a broken kneecap which he sustained as a result of the Incident.
The applicant alleges that the respondent breached that duty of care by failing to provide a qualified general practitioner after the report of the Incident, which resulted in the delay in obtaining adequate medical treatment to alleviate the pain and suffering arising from the injury.
As I understand the applicant’s contentions, the respondent should have observed or noticed that he required the attention of a qualified general practitioner to begin with and throughout the 19-day period, but failed to do so. He also alleges that the assessment by the first SAPHS medical officer was inadequate.
On 21 January 2021, the respondent filed an amended defence (FDN 50) pursuant to leave granted by the Court on 12 January 2021.
To succeed in his Claim, the applicant must establish three things:
1. the respondent owed the applicant a duty of care;
2. the respondent breached that duty; and
3. the applicant suffered damage which was caused by the breach of duty, and was not too remote from it in law.
The respondent admits that it owed the applicant a duty of care to provide him with appropriate medical treatment during the 19-day period, 1 and that the applicant suffered injury to his head and knees as a result of the Incident but, denies that it breached that duty. While the applicant uses the expression “adequate” medical treatment and the respondent uses “appropriate”, I consider that there is no material difference for present purposes but I will ask the parties to clarify this.
The respondent alleges that the applicant received appropriate treatment, nursing care and medical assessment in relation to any injuries to his head and left knee during the claim period, and that further treatment was not required. Considerable detail is pleaded as to what it alleges occurred during the claim period and in respect of the injuries sustained as a result of the Incident.
Alternatively, if the respondent failed to provide the applicant with appropriate medical treatment, the respondent denies that any injury, loss or damage suffered by the applicant is causally linked to its negligence. The respondent further alleges that any such negligence (which is denied) did not deprive the applicant of a materially different outcome.
To the extent that the applicant may be entitled to damages, the respondent alleges that the award and payment of damages must be made with regard to and in accordance with Part 7 of the Correctional Services Act 1982 (CSA).
Accordingly, the central issues to be determined in this action are:
•     Did the respondent breach the duty of care?
•     If so, did the breach cause any injury, loss or damage to the applicant or otherwise deprive the applicant of a materially different outcome?
The Court may also need to consider whether the CSA applies to any proposed award and payment of damages to the applicant.
It seems to me that the determination of the central issues in this case will largely depend on the Court’s factual findings as to what occurred during the 19-day period based on:
•     the oral evidence of the applicant and any witnesses called by the parties with direct knowledge of what occurred during that period; and
•     any medical evidence concerning the applicant’s injuries, particularly as to whether the applicant was deprived of a materially different outcome due to the lack of adequate medical attention and treatment until 29 April 2019.
To establish whether a duty of care has been breached, the Court will look first at the standard of care that is expected in the circumstances. The Court will look at what a reasonable person would have done (or not done) in the same circumstances, and whether the respondent has acted in an unreasonable way or their actions fell well below the standard expected.
It appears to be common ground between the parties that the respondent is expected to provide adequate and/or appropriate medical attention and treatment to a prisoner in their custody and care. The adequacy and/or appropriateness of the medical attention and treatment will depend upon the circumstances that occurred following the Incident. My understanding of the applicant’s submissions as to the relevance of the Contested Documents is that those documents will essentially support his case on breach i.e. that the conduct of the prison authorities fell well below the standard of care which was reasonably expected in the circumstances. More specifically, I understood his submissions to be to the effect that certain categories of prisoners, like him, were subject to much greater levels of observation and monitoring by the prison authorities, and in that context, the conduct of the prison authorities will be shown to have fallen well below the standard of care reasonably expected in those circumstances.
It is relevant to note that at the time of the order for discovery of the Contested Documents, the respondent had only filed a bare defence which did not admit the alleged duty of care. The amended defence now includes an admission of the duty of care and pleads further material facts as to the treatment, nursing care and medical assessment provided by the respondent in relation to the alleged injuries to his head and left knee during the claim period. According to the respondent, over that 19-day period, the applicant was assessed by either a nurse or a SAPHS medical officer on 11 of those days.
Without in any way prejudging the matter, I expect that whether or not the respondent is found to have breached their duty of care will depend on the evidence of what was discussed and observed on each of those occasions and what care and treatment was provided, and whether that care and treatment was reasonable.
It is therefore difficult to see how the broad category of the Contested Documents are directly relevant to the issues in dispute. Nevertheless, I have reviewed the content of each and every redaction, and generally speaking, have applied a broader test of relevance if, in my view, the claim of public interest immunity did not appear to be justified. For example, documents 1.2.18 and 1.2.19 relate to the use of force and are of questionable relevance. However, documents 1.2.14 and 1.2.15 are, in my view, wholly irrelevant to the issues in dispute. These documents relate to training to safely and securely undertake a hospital escort and manage contingencies and the supervision of prisoners in hospital. This case has nothing to do with a hospital escort or the applicant’s supervision in hospital. I intend to uphold the objection to production of these unredacted documents on the basis of irrelevance alone.
I will hear from the parties at the adjourned hearing of the application listed at 11am on 19 February 2021 but in the meantime I direct the respondent to reconsider the redaction that I have marked as ‘not justified’ in the attached table and to file and serve the table updated with its position by 4pm on Thursday, 18 February 2021.
The final decision of 13 April 2021
Introduction
On 12 February 2021, I delivered reasons for my indicative rulings on the respondent’s objections to the production of the redacted content of the Contested Documents. I made orders requiring the respondent to file and serve a table in the form attached to those reasons updated with its position in respect of the redactions marked as ‘not justified’ ahead of the relisting of the matter before me on 19 February 2021. The table filed and served by the respondent reflected its acceptance of my indicative rulings.
On 19 February 2021, the parties addressed the Court in relation to the indicative rulings and I reserved my decision on the final rulings.
These are my reasons for my final rulings on the redaction of the Contested Documents. Attached to these reasons is a revised table with my final rulings on the redacted content having the benefit of hearing from the parties. These reasons should be read together with my earlier reasons of 12 February 2021.
General observations and approach
With few exceptions, the applicant’s position is that the entirety of the content of the Contested Documents must be produced and disclosed in their unredacted state. He continues to object to any claim of public interest immunity. Accordingly, and consistent with my earlier approach to the indicative rulings, the threshold issue is relevance of the redacted content of an otherwise disclosed document.
Given the discovered status of the Contested Documents, I have for the most part assessed relevance as either directly relevant or ‘peripheral’. For redacted content categorised as having direct or peripheral relevance, I have considered the issue of whether the redaction is justified based on public interest immunity. There are several Contested Documents which are wholly irrelevant to the issues in dispute in these proceedings. I have upheld the respondent’s objection to the production of the unredacted content in wholly irrelevant documents irrespective of whether a claim of public interest immunity is justified.
The issue of the direct relevance of the specific Contested Documents with redacted content is not addressed in the applicant’s written submissions filed on 15 December 2020. Instead, at paragraph 5 of his written submissions, Mr Rankine submits that ‘the whole of standard operating procedures taught too correctional services are of relevance and have are of evidentiary value to the merit of my action’(sic).
At the hearing on 19 February 2021, the applicant’s oral submissions for the most part continued to be generally based, and reflective of his broad layman’s views of relevance of the category of the Contested Documents. Mr Rankine did not appear to appreciate the legal meaning of ‘direct’ relevance in the context of the issues in dispute arising from the pleadings. Nor did he seem to understand the lower onus of proof in civil litigation based on the balance of probabilities, compared with the higher criminal burden of beyond reasonable doubt. Mr Rankine appeared anxious to ensure that he was not deprived of any evidence of value to the merits of his case.
In these circumstances, and particularly where the redacted content appeared in discovered documents, I categorised some content as having ‘peripheral’ relevance to the subject matter in these proceedings adopting a more conservative approach that favours the applicant’s position.
Applicable legal principles: Public Interest Immunity
The legal principles that apply when determining claims of public interest immunity are as distilled by Debelle J in Adelaide Brighton Cement Ltd v South Australia and Anor and endorsed by the Full Court in Medical Board of SA v Fisher as follows:
(1) The general rule is that a court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it…
(2) However, the court recognises that there are two aspects to the public interest which may conflict. They were described by Lord Reid in Conway v Rimmer [1968] UKHL 2; [1968] AC 910 at 940 in these terms:
There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.
…
(3) It is the duty of the court, not the privilege of the executive, to determine whether a document will be produced or may be withheld...
(4) The court determines whether a document should be produced or withheld by deciding whether the public interest which requires that the document should not be produced outweighs the public interest that a court in performing its functions should not be denied access to relevant evidence…
(5) When carrying out this balancing task, the court will give weight to the Minister's opinion that the documents should not be produced but will form its own opinion whether the public interest will be the better served by production or non-production…
…
(7) As decisions made by executive government concern such a wide variety of issues, there can be no single rule of thumb by which to determine whether a document should be produced for inspection ... The fundamental principle is that documents may be withheld from production only if, and to the extent that, the public interest renders it necessary. In this respect it must be noted that the categories of public interest are not closed and are not confined to strict and static classes ...
…
(9) It is now beyond question that the court has power to inspect the document or documents privately… In some cases, the court might be able to determine that the public interest requires that the documents be withheld from production without inspection of the documents... Only in cases where the ministerial affidavit demonstrates with sufficient particularity the nature and the significance of the documents both in terms of any need to preserve their confidentiality on the one hand and for the actual litigation on the other is it likely that it will be possible to reach such a conclusion… In almost all other cases, an inspection will be necessary…
(10) Once a court has decided ... 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... In addition, it seems prudent to inspect, first, to ascertain whether the relevance of any document is so peripheral that it should not be disclosed and, secondly, to determine whether, despite the fact that production should be ordered, it is necessary to mask part of the document: see para (12) below.
(11) If inspection of documents is necessary, it ought to be carried out by the court and not by any other person before ordering production for inspection ...
(12) In some cases inspection may indicate that it is appropriate to order disclosure but that part of the document should be masked so as not to disclose something which the public interest requires should not be published...
Analysis and conclusions
Relevance of redacted content
Powers of observation
As I understood the applicant’s oral submissions, he contends that any document that records the procedures for, and/or powers of, observation of prisoners by correctional services officers is directly relevant and has evidentiary value to the merits of his claim. He submits that correctional services officers are trained and required to have a higher level of observation of prisoners in his circumstances at the time of and following the Incident (i.e. as a prisoner held in Maximum Security G Division who has sustained a head injury).
I do not accept the premise that every document that records the procedures for, and/or powers of, observation of prisoners by correctional services officers must be directly relevant and have evidentiary value to the merits of his claim. However, I accept that a document specifying the training and/or standard operating procedures of correctional services officers concerning the observation of prisoners in Maximum Security G Division and/or a prisoner who has sustained a head injury might be directly relevant to the standard of care to be expected in the circumstances of this case. Such a document might be of evidentiary value in establishing that the respondent failed to meet that standard of care. I have approached my review of the redacted content of Contested Documents and my final rulings consistently with this view of direct relevance.
Head Injury
The applicant was particularly concerned with any document that related to a head injury. I indicated that I would revisit the redacted content and identify any content, if any, which specifically dealt with steps to be taken and or medical treatment to be obtained in respect of a head injury. I considered that such a document might be directly relevant to the applicant’s claim and the issues in dispute. Having revisited the redacted content of the Contested Documents, I did not identify any such redacted content.
Hospitals
The applicant conceded that if items 1.2.14 and 1.2.15 of the Contested Documents related exclusively to prisoners attending external hospitals (rather than the prison hospital/infirmary) those documents would not be relevant, and he would not press for production of unredacted copies.
By email dated 23 February 2021 from the respondent’s solicitor, the respondent confirmed that to be the case. Accordingly, there is no ongoing dispute about my indicative findings on items 1.2.14 and 1.2.15 of the Contested Documents.
Public Interest Immunity
The applicant’s written submissions make general reference to well-known legal authorities dealing with public interest immunity but do not articulate the specific principles that the Court should apply in the present case.
At the hearing on 19 February 2021, the applicant also referred the Court to some legal articles dealing with public interest immunity. The applicant submitted that this was not a case involving Cabinet Ministers or terrorism or anything other than civil liability. The applicant referred to the general principles of causation under s 34 of the Civil Liability Act 1936 (SA).
The applicant also submitted that the respondent was bound by legislation to provide the Contested Documents to him and to the Court pursuant to sections 84, 85C and 85CA of the Correctional Services Act 1982 (SA).
As I understood the totality of his submissions, the applicant relies on the existence of a public interest in the production of information relevant to the issues to be determined in civil litigation. I accept the existence of a public interest broadly in these terms. However, the applicant did not specifically address, the existence of any competing public interest for non-disclosure of the redacted content of the Contested Documents on the specific grounds identified in the affidavit of Ms Gransden, a senior officer of the Department for Correctional Services (DCS), affirmed on 7 December 2020, relied upon by the respondent.
The respondent relied upon its written submissions filed on 15 December 20204 which referred to the applicable legal principles stated by Debelle J in Adelaide Brighton Cement Ltd v South Australia and Anor as per above. My approach has been consistent with these principles, including the adoption of the prudent approach of inspecting the redacted content of documents for the purpose of determining the claim to public interest immunity.
The respondent also relies on a decision of the Victorian Court of Appeal in State of Victoria v Brazel (Brazel), which involved a long-term prisoner who sued the prison authorities for alleged negligence in failing to prevent an assault by a fellow prisoner in a high security unit some 10 years earlier. While the Court of Appeal rejected the public interest immunity claim in the circumstances of that case, the Court 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.
I agree with the views expressed in the Court of Appeal in Brazel as to the existence of a powerful public interest in the maintenance by the State of a secure prison for the benefit of all concerned and the existence of a public interest in ensuring the safety of those who are imprisoned and those who work in our prisons.
In my view, the respondent has acted consistently with the principles in Brazel as reflected by the relatively narrow scope of redacted content of the Contested Documents based on public interest immunity of the nature asserted in Brazel.
The respondent’s claim to public interest immunity is supported by Ms Gransden’s affidavit, which deposes to current DCS policies, procedures and practices across the State’s prison system. Ms Gransden is the director, Operational Support and Performance and the officer within DCS who gave instructions as to which parts of the documents contained in the Contested Documents should be redacted so that the sensitive or confidential information contained therein would not be revealed to the applicant. As indicated earlier, the respondent’s primary objection to the production of unredacted copies of the Contested Documents is on the basis that those parts are irrelevant. To the extent that the Court determines that those parts are relevant then the respondent’s objection is on the basis that those parts contain confidential/sensitive information which if revealed, would be harmful to the public interest in the maintenance by the State of a secure prison system and in ensuring the safety of those who are imprisoned, and of those who work, in the State’s prisons.
Ms Gransden’s affidavit (at [17] – [34]) describes the nature of the information that has been redacted in each of the Contested Documents and the basis that the redacted information is considered to be confidential and sensitive with sufficient particularity of the nature and the significance of the documents.
I had regard to Ms Gransden’s evidence but ultimately, it is the duty of the Court, to determine whether the redacted content of a document will be produced or may be withheld. I have undertaken that task after inspection of the redacted content with the benefit of the explanations given in Ms Gransden’s affidavit and hearing from the applicant about the competing public interest in disclosure of relevant information.
Final Rulings
Attached to these reasons is a revised table with my final rulings on the redacted content of the Contested Documents. To the extent that the redacted content is determined to be of direct or peripheral relevance to the issues in dispute in this case, I have included a ruling on its production after weighing up the competing public interests referred to above.
I will hear the parties in respect of final orders for production of unredacted content and costs.
(Footnotes deleted).

On 22 June 2021 the magistrate ordered the dismissal of the application for production of unredacted copies of the documents numbered 1.2.2 to 1.2.29 of the respondent’s third list of documents subject to other rulings not relevant to this application for permission to appeal.[14]
[14] Order 3 FDN 67.
The appellant’s submission
The appellant’s ground(s) of appeal are difficult to identify and, as a result, lack particularity. The appellant appears to contend that the magistrate’s decision is “prejudicial” and “oppressive” as the contested documents contain “relevant information”. The appellant contends that the information contained in the documents, the subject of the claim for public interest immunity, is well known to him by reason of his lengthy time in the State’s prison system. Accordingly, the information is not confidential. As a result, no proper basis exists to justify the magistrate upholding the claim to public interest immunity. Nonetheless, he agrees to submit to a confidentiality order to assuage the respondent’s concern about disclosure of sensitive matters contained in the documents relevant to its conduct of the State’s prison systems.
The respondent’s submission
The respondent contends that the appellant has not identified any error by the magistrate.
The respondent submits this Court should be satisfied that the magistrate has thoroughly inspected the redacted parts of the contested documents and has provided particularised rulings in respect of each redaction by reference to relevance and public interest immunity.
Redacting irrelevant information that is confidential and sensitive
As Debelle J explained in Harris Scarfe Ltd (Receivers & Managers Appointed) (In Liq) v Ernst & Young (No 10),[15] it is a well-established and accepted practice that, where a discoverable document contains material which is both relevant and irrelevant, the document can be produced for inspection with the irrelevant parts of the documents masked. While as a general rule the whole of a discovered document is produced for inspection, where there are issues as to confidentiality, irrelevant parts of a document will usually be masked. The affidavit of Ms Gransden established the currency, confidentiality and sensitivity of the material. The Magistrate’s inspection confirmed that certain identified parts of the contested documents were irrelevant. It was clearly open to the magistrate to inspect the unredacted versions to ensure the redactions were properly made.[16] On the hearing of the appeal the appellant sought to challenge the magistrate’s reliance on Ms Gransden’s affidavit on the ground that there is no evidence that she was authorised to speak on behalf of the DCS about current DCS policies, procedures and practices across the State’s prison system. This challenge came too late. It should have been made before the magistrate when the affidavit was tendered. In any event, there is no merit to the objection. Ms Gransden deposes to being the Director, Operational Support and Performances for the DCS. She reports to the Deputy Chief Executive, Statewide Operations. Ms Gransden deposes to being so authorised. There is no basis to doubt her authority. Her affidavit evidenced her familiarity with current DCS policies procedures and practices applying throughout the State’s prison system.
[15] [2006] SASC 325 at [22]-[24].
[16] See Harris Scarfe Ltd (Receivers & Managers Appointed) (In Liq) v Ernst & Young (No 10) [2006] SASC 325 at [29]; see also Harris Scarfe Ltd (Receivers & Managers Appointed) (In Liq) v Ernst & Young (No 11) [2006] SASC 389.
There is no error in the magistrate’s approach to this issue.
Public interest immunity
The magistrate correctly considered whether a document was relevant to the issues as identified by the pleadings, and, if so, whether the document was properly the subject of a claim for public interest immunity.
In the final decision[17] the magistrate correctly identified the applicable legal principles in determining claims of public interest immunity by reference to the decision of Debelle J in Adelaide Brighton Cement Ltd v South Australia and Anor[18], which was subsequently adopted by the Full Court in Medical Board of SA v Fisher.[19]
[17] See final decision at [9].
[18] [1999] SASC 379; (1999) 75 SASR 209 at 212-217.
[19] [2000] SASC 92; (2000) 76 SASR 242 at 248-251.
Further, in the final decision[20] the magistrate referred to the Victorian Court of Appeal decision in State of Victoria v Brazel.[21] There was no error by the magistrate in her analysis and application of that decision. The plaintiff, Mr Brazel, was a long-term prisoner who sued the prison authorities for alleged negligence in failing to prevent an assault by a fellow prisoner in a high security unit some ten years earlier. The State claimed public interest immunity over a schematic diagram of the high security unit where the assault took place and parts of a security review report following the assault. The uncontested evidence of the plaintiff included that the schematic plan was outdated as the high security unit had in the interim been significantly renovated and that he already had knowledge of all of the security protocols sought to be kept secret by the State. In the circumstances, the Court of Appeal rejected the public interest immunity claim.
[20] At [20]-[22].
[21] [2008] VSCA 37; (2008) 19 VR 553.
Significantly, the Court of Appeal in Brazel held 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”.[22] Further, there is a “strong public interest in ensuring the safety of those who are imprisoned, and of those who work, in our prisons”.[23] As such, the Court of Appeal 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.[24]
[22] [2008] VSCA 37 at [23]; (2008) 19 VR 553 at 562.
[23] [2008] VSCA 37 at [23]; (2008) 19 VR 553 at 562.
[24] [2008] VSCA 37 at [27]; (2008) 19 VR 553 at 563.
On the basis of Ms Gransden’s affidavit, the magistrate clearly had a sufficient evidentiary basis to uphold the claim of public interest immunity as the redacted information relates to security or other similar information which is both current and highly sensitive. The decision on the facts in Brazel is clearly distinguishable. All of the redacted information is current. Further, there is no evidentiary basis to find that the appellant otherwise knows the information the respondent wants kept confidential.
The appellant made submissions concerning his general experience and acquired knowledge of prisons and their procedures but that is to be distinguished from official information set out in policy documents and training material to which the appellant, as a prisoner, did not have access. He did not suggest otherwise.
There is no error in the magistrate’s approach to whether a document is subject to a claim for public interest immunity.
Inspection of documents
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.
Further, the respondent submits that in the event that this Court decides to inspect any or all of the unredacted documents, it has filed a notice of alternative contentions to the effect that the Magistrate has erred in finding that a number of the redacted parts of the contested documents are in fact directly relevant or peripherally relevant to the appellant’s claim. Nonetheless, the magistrate refused the order for production on the basis the redacted parts of the documents were subject to a claim for public interest immunity. The respondent maintains that these documents were properly the subject of a claim for public interest immunity and the Magistrate’s rulings can be upheld on that basis. However, it maintains the documents should have been exempt from production on the basis they were irrelevant. In the end it is not necessary to the disposition of the appeal to decide this issue. The central issues in dispute in the substantive proceeding will largely depend upon oral evidence of witnesses as to what occurred during the relevant 19-day period and any medical evidence concerning the appellant’s injuries, especially relevant to causation. It is apparent from the magistrate’s reasons that the redacted parts of the documents concern policies and training material are far removed from the central or any other issues properly in dispute. In particular, the redacted parts do not concern policies, procedures or training about obtaining medical treatment for prisoners. As such, the redactions of these parts of the contested documents can be upheld by reference to the practice identified by Debelle J in Harris Scarfe Ltd (Receivers & Managers Appointed) (In Liq) v Ernst & Young (No 10)[25] without requiring consideration of public interest immunity.
[25] [2006] SASC 325 at [22]-[24].
The appellant made a fleeting reference to the Public Interest Disclosure Act2018 (SA). That legislation has no relevance to this application.
The appellant has failed to identify any error in the approach of the magistrate to the issue of inspection.
The appellant has failed to satisfy me that any question of general principle arises in the appeal. I do not consider there is any reason to doubt the correctness of the decision of the magistrate. I do not consider that any substantial injustice would be caused to the appellant if the order made by the magistrate stands. There is no reason to doubt that the respondent has produced to the appellant all the relevant documents for which there is no proper claim for public interest immunity. There being no error in the approach taken by the magistrate the appeal impermissibly seeks the Court’s intervention to consider afresh the magistrate’s decision in relation to the impugned documents.
Conclusion
I would refuse permission to appeal.
I would hear the parties as to costs.