RMG Services Pty Ltd v South Australia No. SCGRG 91/1021 Judgment No. 4133 Number of Pages 6 Discovery and Interrogatories

[1993] SASC 4133

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA ANDERSON J

CWDS
Discovery and interrogatories - discovery and inspection of documents - Plaintiff seeks further and better inspection of documents for which defendant claims: (1) public interest immunity,(2) protection because of commercial sensitivity. Public interest immunity applies to documents which form the basis of Cabinet discussions where those discussions are not otherwise recorded. Commonwealth of Australia v Northern Land Council and Anr Judgment of High Court of Australia delivered 21 April, 1993, applied. South Australia v O'Shea (1987) 103 CLR 378, considered. No basis to restrict further and better inspection on basis of commercial sensitivity - protected by application of Supreme Court Rule 58.01(6) - undertaking of plaintiff's counsel accepted.

HRNG ADELAIDE, 19 April 1993 #DATE 27:8:1993
Counsel for plaintiff:     Mr R W Evans
   with Mr F Condon
Solicitors for plaintiff:    Condon and Co
Counsel for defendant:     Mr W P White
Solicitors for defendant:    Crown Solicitor's Office

ORDER
Orders made by Anderson J are in the text.

JUDGE1 ANDERSON J The plaintiff Company ("the plaintiff") seeks damages from the defendant for breach of an arrangement allegedly entered into in or about September 1988 whereby the plaintiff was to prepare a pre-feasibility study concerning the establishment of an integrated petro-chemical plant at Whyalla. The cost of such report was to be born equally by the defendant and the Whyalla City Council and thereafter the report would remain confidential and the availability of any agreements pursuant thereto would be expedited by the defendant. It is alleged by the plaintiff that the defendant, through its Department of State Development and Technology, failed to maintain the confidentiality of the report and failed to give full support to expediting any arrangements or approvals in relation to the project. The plaintiff seeks damages for breach of contract and breach of duty, inter alia. 2. By its defence the defendant admits only that a report was to be prepared and thereafter denies the alleged covenants and consequently any breach of contract or duty. Not surprisingly, the discussions which surrounded this project, upon whatever basis it went ahead, involved senior public servants, Ministers of the Crown and the Cabinet of South Australia. 3. Each party filed a list of documents. That of the defendant was filed in July 1992. It lists many documents and is divided into a First and Second Schedule. The former numbers three parts. Part I is a list of documents which the defendant produces for inspection. Part II is a list of documents for which legal professional privilege is claimed. Part IIA is a list of documents for which public interest immunity is claimed. Part IIB is a list of documents for which privilege is claimed "on the grounds that they are confidential and contain commercially sensitive information and their production is not necessary for disposing fairly and expeditiously of the action and would be injurious to the public interest". The Second Schedule is a list of documents which are no longer in the defendant's possession. 4. By an application dated 21 January, 1993 the plaintiff sought an order: "That the defendant make further and better discovery verified by Affidavit and that the defendant allow further and better inspection of documents." 5. On 1 April, 1993 the defendant issued an application seeking to make alterations to the category of certain documents within its list and to enforce the return and/or non reliance by the plaintiff upon a document for which privilege has been claimed but which was unintentionally discovered and further non contentious orders. 6. Both applications came on for argument where it was agreed that apart from orders made in relation to paragraphs 1 and 2 of the defendant's application the further orders sought would await the outcome of the plaintiff's application. 7. The plaintiff did not seek to test the defendant's claim for legal professional privilege in relation to the documents in Part II of the First Schedule. 8. The plaintiff's claim for privilege based upon the ground that the contents of Part IIB of the First Schedule are commercially sensitive and therefore confidential seeks to expand the dimensions of privilege beyond those recognised by the common law: cf "Law of Privilege", McNicol pp 5-7. However, Mr Evans, of counsel for the plaintiff, indicated in the course of his submissions that this part of the application was pressed only so as to enable the plaintiff's advisers to have access to this information and he offered the usual undertaking not to disclose the documents in this part to other than the plaintiff's legal advisers without further order. 9. Whilst there may be some room for argument as to whether such an undertaking is necessary or whether or not the documents remain commercially sensitive in 1993 the provisions of Supreme Court Rule 58.01(6) recognise that an order of the type proposed by Mr Evans may need to be made in certain circumstances. In my opinion that is the appropriate course to adopt in relation to this aspect of the plaintiff's application. 10. The most contentious area in the plaintiff's application relates to the defendant's claim based upon public interest immunity. This claim is supported by a certificate of The Honourable the Attorney-General in an affidavit sworn by him on 16 April, 1993 and handed up during submissions. 11. Subsequent to hearing submissions from Mr Evans and Mr White, of counsel for the defendant, and before delivering reasons I was advised that the High Court of Australia had published its reasons for judgment in Commonwealth of Australia v Northern Land Council and Anr on 21 April, 1993. By arrangement with counsel further written submissions were received. An affidavit sworn by the managing director of the plaintiff, Mr Gomez, on 22 April, 1993 filed in reply to the affidavit by The Attorney-General was also filed. A further affidavit sworn by Mr Condon, the plaintiff's solicitor, on 17 June, 1993 also came in with the plaintiff's further submissions. This affidavit seeks to diminish the defendant's claim by reference to a statement of The Honourable the Deputy Premier, Mr Blevins, published in "The Advertiser" on 9 June, 1993 to the effect that a large project of the type to which the plaintiff's claim refers is no longer contemplated by the Government of South Australia and therefore this claim for privilege is thereby weakened if not obliterated. 12. The Northern Land Council case is to be taken as the current law on the topic of public interest immunity. In that case a single Judge of the Federal Court ordered that the Commonwealth of Australia produce for inspection by the legal representative of the Northern Land Council "notebooks containing notes made by Cabinet officers of the deliberation of Federal Cabinet". This decision was upheld by the Full Court of the Federal Court but reversed by the High Court. 13. In that case, as in this, the defendant had made discovery of the relevant papers. The majority of the High Court in the Northern Land Council case said in this regard at p.1 of the judgment:
    "... there is no dispute, therefore, that they were
    discoverable. That is to say, it may be assumed that the notebooks
    contain entries which relate to matters in issue in the action in
    the sense they would, or would lead to a chain of enquiry which
    would, either advance the Northern Land Council's case or damage
that of the Commonwealth (See Mulley v Manifold (1959) 103 CLR 341,
    at p345)" 14. A similar situation must be taken to exist in this matter in relation to the various types of documents in Part IIA of the First Schedule. The defendant must consider them to have been discoverable in the abovementioned sense. 15. These, however, are not documents which record the actual deliberations of Cabinet as was so in the Northern Land Council case. Rather, as The Attorney-General says in paragraph 6 of his affidavit:
    "... The documents are originals or copies of Cabinet
    Submissions, draft Cabinet Submissions or Minutes between senior
    public servants commenting on draft Cabinet Submissions involving
    the respective Departments in which the public servants were then
    employed. The draft Cabinet Submissions and other documents
    referred to herein resulted in original Cabinet Submissions which
    were considered by Cabinet ..." 16. The Attorney-General then goes on to list when these documents or their contents were considered in Cabinet. 17. It seems that the proceedings of the Cabinet in this State are not only not recorded as is done Federally but not recorded at all. Thus, the documents which go into Cabinet as submissions or annexures thereto are the documents which reveal the result of the discussions therein by virtue only of a stamp or other mark showing what the decision of Cabinet was, if one was reached. 18. This is different from the documents which concerned the High Court in the Northern Land Council case and this distinction was important to the plaintiff. Mr Evans submitted that there was nothing here which showed what was discussed (notwithstanding the balance of paragraph 6 of The Attorney-General's affidavit). The plaintiff also relies upon much of the information contained in the documents being available to the public in any event as is deposed to by Mr Gomez in his affidavit of 22 April, 1993. However, I am not prepared to place great weight upon this latter submission as without inspection and comparison it is impossible to know. Suffice it to say, I would be most surprised if printed in newspapers and other annual documents one would find the significant detail to which the plaintiff's report obviously goes. 19. Similarly, I am not prepared to take Mr Condon's affidavit of 16 June, 1993 as being supportive of the conclusions he draws in paragraphs 5 and 6 thereof in the face of paragraphs 8(b) and (c) of the affidavit of The Attorney-General in the context of 8(a) thereof. 20. Thus, I am not prepared to act on the basis that the information which the plaintiff seeks disclosed, has with the passage of time, lost significance. As best I can tell the information which the plaintiff's report uses remains likely to be relevant to Cabinet discussions at any time when projects using resources drawn from the Cooper Basin are considered. 21. Thus, it is necessary to consider where documents such as these stand in the process referred to in the Northern Land Council case. If they are not within the range so as to be protected then it will be necessary to consider the defendant's objections as to the relevance of these documents having regard to the contents of the plaintiff's statement of claim and thereafter the discretion. 22. As the majority in the Northern Land Council case said at p4:
    "... The claim of public interest immunity must nonetheless
    be weighed against the competing public interest of the proper
    administration of justice, which may be impaired by the denial to a
    court of access to relevant and otherwise admissible evidence. As
    Gibbs ACJ said in Sankey v Whitlam (1978) 142 CLR, at p43; see also
    per Stephen J at pp63-64 and Mason J at pp98-99: 'I consider that
    although there is a class of documents whose members are entitled
    to protection from disclosure irrespective of their contents, the
    protection is not absolute, and it does not endure for ever. The
    fundamental and governing principle is that documents in the class
    may be withheld from production only when this is necessary in the
    public interest. In a particular case the court must balance the
    general desirability that documents of that kind should not be
    disclosed against the need to produce them in the interests of
    justice. The court will of course examine the question with
    especial care, giving full weight to the reasons for preserving the
    secrecy of documents of this class, but it will not treat all such
    documents as entitled to the same measure of protection - the
    extent of protection required will depend to some extent on the
    general subject matter with which the documents are concerned. If
    a strong case has been made out for the production of the
    documents, and the court concludes that their disclosure would not
    really be detrimental to the public interest, an order for
production will be made.'" 23. It follows that where the documents for which public interest immunity is sought fall "into a class of document the disclosure of which would be injurious to the public regardless of the contents" (Northern Land Council p5) disclosure will be ordered "only in circumstances where there was a competing public interest such as the public interest in the advancement of justice, which outweighed the public interest in the preservation of confidentiality" (Northern Land Council p5). 24. Which category then are the documents in Part IIA of the Schedule? These are not the very recording of Cabinet discussions as in the Northern Land Council but they are the documents from which, in this case, those unrecorded discussions flowed. The Attorney claims in his affidavit that the information, although prepared in 1988, remains relevant to matters vital to the future economy of the State in this regard. I have already rejected the plaintiff's claim that there is presently so much information in the public domain that this is not so. 25. There is assistance to be gained from the remarks of Mason CJ in South Australia v O'Shea (1987) 103 CLR 378 at 387 where when considering "that Cabinet holds its meetings in private, that its proceedings are confidential and that it does not give reasons for its decisions" went on to say: "'... Nor would a Court ordinarily require the Minister to disclose his submission to Cabinet, because to do so would compel disclosure of material considered by Cabinet.' (my emphasis)." 26. In these circumstances "I lean ... against ordering disclosure" (Northern Land Council p5). In considering whether this inclination should be displaced as submitted by Mr Evans on the basis of the public interest in the proper administration of justice outweighing the public interest in maintaining Cabinet secrecy I have regard to the nature of the Cabinet process in this State, that these are civil proceedings (unlike Sankey v Whitlam) and that the documents as described in Part IIA are all either notes for Cabinet, submissions for Cabinet or copy drafts thereof. 27. As there are no other documents within the Cabinet process I am unable to discern any real difference in this instance between the documents for Cabinet (including their "drafting" predecessors) and a formal contemporaneous record of what was there discussed in relation thereto. Thus, in my opinion, these documents have the immunity sought for by the defendant and it has not been displaced by a consideration of the matters relied upon by Mr Evans. To distinguish between these papers, described variously as "notes", "draft submissions" and "submissions", in relation to relevant topics is to draw a distinction which in this case is simply too fine. 28. Accordingly, the plaintiff's application in relation to Part IIA of the First Schedule of the defendant's list of documents is refused. I have reached this conclusion without inspecting the documents as it seems to me that such a course is no longer appropriate where documents are held to be in the highest category of public interest immunity. It follows that I have not considered the defendant's alternative submission based upon the relevance of those documents to the issues in the pleadings. The documents should only be inspected by the Court if necessary and I do not take that to be to consider a subsidiary or alternative submission in circumstances such as here pertain. 29. I go now to the unresolved parts of the defendant's application of 1 April, 1993. Paragraph 3 thereof seeks to have documents removed from the general part of the discovery to Part IIB for which commercial confidentiality is claimed. Having regard to the order previously foreshadowed in this regard, and without inspecting the documents, it is appropriate that there be an order in terms of paragraph 3 of the application. 30. As I have refused the plaintiff's application in relation to the documents in Part IIA it must follow that there be orders in terms of paragraphs 4 and 5 of the application. In these circumstances it is not necessary to make any further inquiry of the plaintiff's counsel. 31. The formal orders therefore are these: On the plaintiff's application:
     (a) That the plaintiff's application to inspect the
    documents within Part IIA of the First Schedule of the defendant's
    list of documents is refused.
     (b) That the plaintiff's representative be at liberty to inspect
    the documents within Part IIB of the First Schedule of the
    defendant's list of documents having given the necessary
    undertakings.
     (c) That verification by affidavit of the defendant's list of
    documents be further considered. 32. As to the defendant's application:
    (a) Order in terms of paragraphs 3, 4 and 5 thereof.
    (b) That verification by affidavit of the plaintiff's list of
    documents be further considered. 33. This order should be drawn up so as to ensure that there is no misunderstanding as to the terms of the required undertaking. I shall hear counsel as to the Minutes, costs and further directions.