Rowan v Cornwall & Ors No. Scgrg-90-1481 Judgment No. S178

[1999] SASC 178

ROWAN  v CORNWALL AND OTHERS
[1999] SASC  178

Civil

1. DUGGAN J.      This is an application by the plaintiff dated 26th March 1999 which seeks, inter alia, an order for the production of various documents discovered by the State defendants.   The application also seeks further and better descriptions of some of these documents in the event that production is not ordered.  The State defendants have claimed public interest immunity in relation to a number of the documents.   Legal professional privilege is claimed in respect of others and both public interest immunity and legal professional privilege are claimed in a few instances.

2. The nature of the proceedings has been summarised in other rulings I have made on preliminary issues in the case.  It suffices for present purposes to say that the plaintiff was the former administrator of the Christies Beach Women’s Shelter, the administration of which was criticised in the report of a Review Committee investigating women’s shelters.  Subsequent to the report, funding for the Christies Beach Women’s Shelter was withdrawn and the shelter closed.   The causes of action arise out of statements in the report, media coverage of those statements and the actions of the Federal and State governments in relation to the funding of the shelter.   Many of the documents which are the subject of the present application are in the possession of the Department of Community Welfare and are concerned with complaints made in relation to the administration of the shelter.   There are other documents which deal with the general administration of the shelter.

3. In the case of some documents, public interest immunity is claimed on the basis that the identity of persons providing information to the Department of Community Welfare should be protected.   Public interest immunity is also claimed in respect of some documents by reason of the fact that they were prepared for the consideration of Cabinet in its discussions on issues associated with the Christies Beach Women’s Shelter and shelters generally.

4. I deal first with those documents which relate to the provision of information to the Department of Community Welfare.   I was referred to the well known public interest in protecting sources of information provided to law enforcement agencies.  (See Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 60 and Caine v Glass [No. 2] (1985) 3 NSWLR 230).

5. I accept that the identity of such informants should not be disclosed other than in exceptional circumstances.   However the extent to which that principle can be applied or adapted to cases which do not involve the investigation of criminal offences by a law enforcement authority is not settled by the authorities.  (See the discussion in McNicol, Law of Privilege (1992) p423f).  In D v National Society for the Prevention of Cruelty to Children [1978] AC 171 the House of Lords held that public interest immunity would apply to protect informants who advised a non-government organisation about alleged cruelty to children. It is to be noted, however, that the allegations related to criminal conduct. Although it was recognised that confidentiality does not, of itself, provide immunity from disclosure, it was held that there was a clear analogy between giving information to a body such as the society which had power to prosecute and providing information concerning criminal conduct to the police (supra at 219).

6. On the other hand, in Woollahra Municipal Council v Westpac Banking Corporation and Anor (1992) 33 NSWLR 529 it was held that the immunity was not available to persons who provided information to council inspectors conducting an investigation into alleged irregularities in council administration in circumstances where the informants could be compelled to provide the information.

7. This issue was not argued in depth before me, but in the circumstances of the present case I am not prepared to hold that such an immunity is available to persons providing to a government department information which is critical of the administration of a government funded institution.   A number of the documents in respect of which production is sought come within this category.  It is a category far removed from those cases where the maintenance of law and order is assisted by providing immunity to informants who give information about breaches of the law.

8. It was agreed between the parties that I should peruse the documents which are the subject of the application.   The documents marked E11, E12, E16, E19, E20, E21, E24, E25, E27 and I45 relate to complaints about the administration of the shelter and, in some instances, the attitude of the plaintiff in her capacity as administrator.   In some of the documents the identity of the person providing the information is revealed.   However none of the documents qualify for public interest immunity.   In my view these documents should be produced for inspection.   I am further of the view that E18, E25 and H35 should be produced for inspection subject to the deletion of the name of the complainant and any information in the document tending to identify the complainant.   I make this order by reason of the fact that certain allegations in the documents could be construed as imputing breaches of the criminal law.

9. The next group of documents comprise material prepared in connection with submissions to Cabinet by the Minister of Community Welfare.   The State defendants submit that there should be no order requiring these documents to be produced for inspection.   The basis of the claim is public interest immunity and it is supported by an affidavit from the Attorney-General which stresses the importance of confidentiality in Cabinet deliberations.

10. The principles relevant to this category of public interest immunity are discussed in Sankey v Whitlam and Others (1978) 142 CLR 1 and The Commonwealth v Northern Land Council and Anor (1993) 176 CLR 604. The more important principles can be summarised briefly as follows:

11. Objection may be made to the production of a document on the grounds that it would be contrary to public interest, either because of the contents of the particular document, or because it belongs to a class of documents which, in the public interest, ought not to be disclosed.  (Sankey at 39).

12. Documents which record cabinet deliberations on current or controversial matters belong to a class of documents which attract such immunity.  (Northern Land Council at 617).  The immunity is justified by the importance of ensuring that decision making at such a high level is uninhibited.  (Northern Land Council at 616).

13. The immunity conferred upon a class of documents such as those which record Cabinet deliberations is not absolute and considerations of justice in a particular case may require production.  (Northern Land Council at 618).    In the case of documents recording actual deliberations of Cabinet, exceptional circumstances will be required before the court orders that they be produced.   It is doubtful whether the disclosure of records of actual Cabinet decisions would ever be justified for the purpose of civil procedures.  (Northern Land Council at 618).

14. If the topics to which the documents relate are not of current significance, the risk of impeding the working of the government may be slight.  (Sankey at 98).

15. As a general rule, a claim for public interest immunity must be weighed against the competing public interest of the proper administration of justice.  (Northern Land Council at 616).   The degree of relevance of the documents to the litigation in which production is sought is an important factor in this balancing exercise.

16. I have perused documents E28A, G29, G34A, H36, H40, K57A, L58, L59 and L61 with these principles in mind.  They are documents containing submissions prepared by the Minister for Community Welfare for discussion in Cabinet.   Some of the documents are drafts of the documents eventually submitted to Cabinet; some have the Cabinet decision recorded on the document.   After considering the contents of the documents, I am satisfied that public interest immunity attaches to each of them and that it is not displaced by any competing interest aimed at furthering the interests of justice.

17. There are other documents which clearly come within the protection of the immunity based on legal professional privilege.  They are G32, K57, M62, M63 and M65.    No order for production will be made in relation to these documents.

18. Document C4 is not relevant to the issues in the case and I decline to make an order for its production.   The descriptions of the documents K54 and K57 have been transposed.   I wish to hear the parties further on whether K54 and P15 should be produced for inspection.

19. Documents Q1 and R1 are copies of diary extracts discovered by the State defendants.  It was argued that the solicitors for the defendants should have perused the diaries to determine what extracts should have been discovered.   I am satisfied that appropriate directions were given to the authors of the diaries to search and identify material requiring discovery.

20. Counsel for the plaintiff sought an order requiring further descriptions of certain documents.   It may be that, with the possible exception of P15, no order of this nature is required in the light of my rulings.  However I leave this question open for further argument.  I will also hear the parties as to the form of the orders to be made.