Ryan and Anor v Turner and Anor (Ruling)
[2014] VCC 1692
•13 October 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-13-05451
| MARK RYAN and ALEXANDER FORBES | First Plaintiff Second Plaintiff |
| v | |
| MICHELLE TURNER and STATE OF VICTORIA | First Defendant Second Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 September 2014 | |
DATE OF RULING: | 13 October 2014 | |
CASE MAY BE CITED AS: | Ryan & Anor v Turner & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1692 | |
RULING
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Subject: EVIDENCE
Catchwords: Application for public interest immunity – disclosure of documents – whether disclosure injurious to public interest – countervailing public interest in administration of justice – relevance of redacted portion of documents to the proceeding – torts of assault and battery
Legislation Cited: Evidence Act 2008 (Vic); Police Regulation Act 1958
Cases Cited:Sankey v Whitlam (1978) 142 CLR 1; Matthews v SPI Electrical Pty Ltd & Ors (No 11) [2014] VSC 65; Public Transport Ticketing Corp v Integrated Transit Solutions [2010] NSWSC 607; Underhill v Sherwell [1997] NSWCA 325; Watkins v State of Victoria [2010] 27 VR 543; Seymour v Price [1998] FCA 1224
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Ms L J Martin | Flemington/Kensington Commercial Legal Service |
| For the First Defendant | Russell Kennedy | |
| For the Second Defendant | Mr R Gipp | Victorian Government Solicitor |
HER HONOUR:
Application
1 The State of Victoria redacted certain documents set out in Part 2 of Schedule 1 of the Affidavit of Documents dated 16 May 2014 filed on behalf of the State. It asserts that the redacted portions of the documents contain information that is subject to public interest immunity or is not relevant to the proceeding. Those documents are:
· The Victoria Police Mounted Branch’s Defence Tactics Manual 2012;
· The Victoria Police Mounted Branch’s Crowd Control of Movements Manual;
· PowerPoint slide presentations on various Mounted Branch Operational Tactics; and
· PowerPoint slide presentation summarising police tactics and strategies to be utilised during the protest at the Maribyrnong Detention Centre on 29 May 2011 (the subject of the proceeding) (“The documents in issue”).
The law relating to public interest immunity
2 Section 130(1) codifies the common-law doctrine of public interest immunity. Section 130(1) of the Evidence Act 2008 (Vic) (“the Act”) provides:
“ If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.”
3 The effect of the subsection is that the Court will not compel or permit the disclosure of a document that would be injurious to an identified public interest and may direct that the document not be adduced as evidence.[1] In deciding whether to give such a direction, the Court may inform itself in any way it thinks fit.[2]
[1]See Sankey v Whitlam (1978) 142 CLR 1 at 38, per Gibbs ACJ
[2]Evidence Act 2008 (Vic), s130(3)
4 A non-exhaustive list of circumstances where information or documents are taken to relate to be “matters of state” is set out in s130(4) of the Act.
5 In determining the issues, the Court may take into account the following matters (which are non-exhaustive):
(i)the importance of the information or the document in the proceeding;
(ii)the nature of the cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(iii)the likely effect of adducing evidence of the information or document, and the means available to limit its publication; and
(iv)whether the substance of the information or document has already been published.[3]
[3]Evidence Act 2008 (Vic), s135(a), (c), (d) and (e)
6 The onus is on the party claiming immunity to show why non-disclosure should be ordered.
7 In determining a claim for immunity, the Court must first identify the precise public interest that arises and whether there is a risk that disclosure would be injurious to that interest.[4] The Court must first establish that there is a genuine public interest claim. The Court must then balance this against the public interest in the administration of justice and any relevant competing public interest, to see which should prevail. The administration of justice may be impaired by the denial of relevant and otherwise admissible evidence. This requires an examination of the relevance of the documents for the determination of the litigation. Further, the Court must identify whether the public interest in the judicial process requires disclosure.
[4]Sankey v Whitlam (1978) 142 CLR 1 at 38
The legislation relied upon by the parties
8 Both parties addressed me on the application of s130(4) of the Act, being the applicable section in the exclusion of evidence of matters of State. However, the parties addressed me on different subsections under s130(4).
9 Counsel for the defendant relied on s130(4)(f) of the Act. Subsection (4)(f) provides that a document may be taken for the purposes of ss(1) to relate to matters of State if adducing it as evidence would “prejudice the proper functioning of the government of the Commonwealth or a State”.
10 On the other hand, Counsel for the plaintiffs submitted that –
(a)Firstly, s130(4)(f) did not apply at all, as the proper functioning of ‘government’ could not include the functions of the Police in this case.
(b)Secondly, any analysis should rely on and be directed to s130(4)(c) of the Act, not (f). Section 130(4)(c) refers to circumstances where documents contain information that would “prejudice the prevention, investigation or prosecution of an offence”, to such a sufficient extent to invoke a public interest immunity. Counsel for the plaintiffs submitted that, in view of s130(4)(c), the challenged documents do not contain information that would prejudice the prevention, investigation or prosecution of an offence. The documents do not properly relate to matters of state.
11 As to whether or not s130(4)(c) or (f) was the relevant section, I do not accept the plaintiffs’ submissions that s130(4)(c) is the relevant section for analysis. More specifically, the redacted portion of the documents relate to wider aspects of Victoria Police functions as an agent of the government.
12 I take the view that s130(4)(f) is the relevant section for analysis. I am satisfied that the word ‘government’ in s130(4)(f) is no impediment to applying the subsection in this case. Odgers says that s130(4)(f) is likely to relate to ‘government’ broadly defined. The Victoria Police is part of government, required for its proper functioning. The Victoria Police force is required to maintain law and order in the State of Victoria. As an agent of government it performs broad functions, including crowd control, which is a proper function of the government. Having examined the documents, I am satisfied that the redacted portion of the documents deal with the proper functioning of government via the Victoria Police.
13 I am satisfied that the redacted portion of the documents contain matters of state, and the relevant section for this analysis is s130(4)(f). The question is whether adducing such evidence would prejudice the proper functioning of the government of the State of Victoria, such that it outweighs the public interest in admitting it into evidence.
Submissions by the State of Victoria: The public interest in the exclusion of evidence of matters of state
14 The State of Victoria submitted that there was a public interest to be protected in preserving the confidentiality and secrecy of the challenged materials. Adducing evidence from the redacted portion of the documents in this case would “prejudice the proper functioning of the government of the Commonwealth or a State”,[5] in particular the proper functioning of the Victoria Police Mounted Branch. The present case deals with police manuals and procedures in maintaining public order, the function of which has been delegated by the government. It could be interpreted that the documents in question if released have the potential to prejudice the proper functioning of government in maintaining public order. Specifically, the disclosure of Police training and tactical information would prejudice the effectiveness of Mounted Branch operations in future, and would equip persons with information that enables them to participate and potentially neutralise Mounted Branch police tactics.[6]
[5]Evidence Act, s130(4)(f)
[6]Affidavit of Sergeant Astill sworn on 20 August 2014 at paragraphs [5]-[6]
Submissions by the Plaintiffs: The counterbalanced public interest in the administration of justice
15 The countervailing public interest is in the administration of justice. In particular whether access to the details of Mounted Branch training and tactics is sufficiently relevant to this proceeding.
16 The plaintiffs say these documents and information relate to the question of whether Turner was complying with methods contained in official Police records. This is relevant to the issues of –
(a) Whether Turner acted recklessly and without lawful excuse, which could lead to an increased damages award;
(b) The respective liability between Turner and the State of Victoria.
17 I determined that it was necessary for me to inspect the documents for the purposes of this application.[7] I have therefore examined the documents and information in this case.
[7]Section 133 of the Act enables the Court to examine the document to determine whether the claim is justified.
Analysis
Is there a genuine public interest?
18 I formed the view that the redacted portion of the documents fall within the category of circumstances outlined in s130(4)(f) of the Act. I accept there is a genuine public interest in protecting the information in the documents from disclosure, that is, maintaining the effectiveness of operations of the Mounted Branch of Victoria Police. There is no sufficiently countervailing public interest that would justify their disclosure. The redacted portion of the documents in this case must not be adduced as evidence and should be afforded public interest immunity for the reasons I will outline.
19 In undertaking the balancing exercise, I turn to examine the matters stated in s 130(5) of the Act.
The importance of the information or the document to the proceeding: s130(5)(a)
20 Counsel for the plaintiffs submitted that the challenged documents are likely to shed light on many aspects of the plaintiffs’ pleadings. I must determine, based on the pleadings, how important the documents are.
21 Relevantly, Derham As J in Matthews v SPI Electrical Pty Ltd & Ors (No 11),[8] stated:
[8][2014] VSC 65 at paragraph [24], sub-paragraph (k)
“In order for the public interest in the administration of justice to arise in the balancing process, the documents must contain ‘material evidence’. Relevance to the proceedings is of itself insufficient. The documents must have an important bearing upon the ultimate decision on the relevant questions…”
[references omitted]
Derham As J further said that documents relating to a topic that is current or controversial will attract a high level of confidentiality.[9]
[9](Supra) at paragraph[24], sub-paragraph (r)
22 First, I turn to the pleading that Turner used Troophorse Upwey to fall to the ground and roll onto Ryan using a rehearsed, controlled manoeuvre. That is addressed by Sergeant Astill, who deposed, in paragraph 19:
“Further, insofar as this proceeding is concerned, I confirm that in response to paragraph 38(c) of the plaintiff’s Statement of Claim dated 15 October 2013, there is no training of members or horses at the Victorian Police Mounted Branch to fall to the ground and roll onto protestors deliberately as part of ‘a rehearsed controlled maneuver’ [sic] as alleged.”
23 My inspection of the documents in issue confirmed that the redacted portions do not support Ryan’s allegation with respect to a rehearsed, controlled manoeuvre. There were no documents or information of this nature. This is consistent with Sergeant Astill’s evidence. Accordingly, the documents and information are not at all relevant to this aspect of Ryan’s claim.
24 In the alternative, Ryan and Forbes claim that Turner failed to prevent Troophorse Upwey from treading on Forbes’ foot and rolling onto Ryan (paragraph 39 of the Statement of Claim). Counsel for the plaintiffs submitted that the redacted portion of the documents might be adduced in support of the argument that Turner’s actions were reckless, and that there was no lawful excuse for Turner breaking away from other riders and entering the crowd of protestors on her own. If Turner was not riding in accordance with official Police methods, this would strengthen the plaintiffs’ argument. The difficulty with this submission is that the plaintiffs have not pleaded this in the Statement of Claim. Rather, the Statement of Claim refers to the Mounted Branch (a plurality) advancing on the protesters. Furthermore, the redacted portions of the documents are not probative of the actions taken by either Defendant, as stated in the particulars of the plaintiffs’ pleadings. They do not assist the Court to resolve the issues in dispute surrounding the alleged failure to prevent ‘treading’ and ‘rolling’ by Troophorse Upwey. The redacted portions do not explain or contradict this claim in any substantive way. They are not relevant or important in this aspect of the proceedings.[10]
[10]See Public Transport Ticketing Corp v Integrated Transit Solutions [2010] NSWSC 607 per Einstein J at paragraph [22], sub-paragraph (v)
25 In respect to the PowerPoint slide presentation summarising police tactics and strategies to be utilised at the Maribyrnong Detention Centre on 28 May 2011, I have inspected that presentation. It does not address the issues in the proceeding. It is not relevant to the proceeding.
26 Counsel for the plaintiffs submitted that the documents should be released because the second defendant accepted their relevance by including the documents in its Affidavit of Documents. I do not accept that submission. I do not propose to release documents which are of no real importance or relevance to the proceeding.
27 I conclude that the redacted portion of the documents are of nominal, or no importance in the proceeding.
The nature of the cause of action or defence to which the information relates, and the nature of the subject matter of the proceeding: Section 130(5)(c)
28 The claims brought by the plaintiffs, Ryan and Forbes, allege that while protesting at the Maribyrnong Detention Centre on 29 May 2011 they were assaulted and battered by Turner and her Troophorse, Upwey. It is necessary for me to examine the pleadings. I will not repeat the pleadings, but I have considered them in detail.
29 The claims brought by the plaintiffs are intentional torts of assault and battery. I note the nature of these causes of action. Once the plaintiffs establish that force, or the threat of force, was applied to their persons, the burden of proof shifts from the plaintiffs to Turner to establish that the use of force or the threat of force was reasonable.[11] Having examined the documents and redacted information, I am satisfied they are not probative of the cause of action. They do not assist in establishing the fact of whether force was used. I note this case does not involve claims in negligence.
[11]Underhill v Sherwell [1997] NSWCA 325; Watkins v State of Victoria [2010] 27 VR 543 at paragraph [74]
30 The question of whether the alleged use of force was reasonable is a matter for the Defence in this case. Counsel for the plaintiffs submitted that the redacted portion of the documents are relevant to the analysis of Turner’s defence. In particular, this evidence will allow the plaintiffs to challenge paragraph 57(3) of Turner’s Defence which avers to Turner carrying out her “lawful duties”. Counsel for the defendant submitted that the nature of Turner’s defence rests on what was reasonably necessary to maintain public order in this particular case. Having examined the redacted portion of the documents, I am not satisfied they are probative of Turner’s defence. The redacted portions of the documents address very broad sets of circumstances. They shed no real light on the events and actions that form the subject matter of this proceeding. Further, Turner does not rely on the redacted portion of the documents in her defence. They are not important to this aspect of the proceedings.
31 A further submission by the plaintiffs was that the challenged documents are essential to a proper determination of the respective liability of the first and second defendants. In response to this, Counsel for the State of Victoria submitted that the claim came into existence before 1 July 2014 and is governed by s123 of the (then) Police Regulation Act 1958. Pursuant to that section, a member of the Police force is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith in the course of his or her duty as a member of the force. Any such liability attaches, instead, to the State. I accept this submission. Accordingly, I take the view that the redacted portions of the documents are not probative of the cause of action or defence in this aspect. The statute ultimately determines the issue.
The likely effect of adducing evidence of the information or document, and the means available to limit its publication: Section 130(4)(d)
32 I accept the submission of counsel for the State of Victoria that the disclosure of information that publically reveals Police techniques in an operational context may hamper future police operations. Sergeant Astill deposed to such effect. The redacted portion of the documents are used to train Police force members in a wide range of functions. Such material underpins the cohesive and proper functioning of the Police and, in turn, the government in its functions as to law and public order in the State. Specifically, the disclosure of Police training and tactical information would prejudice the effectiveness of Mounted Branch operations in future, and would equip persons with information that enables them to participate and potentially neutralise Mounted Branch police tactics.[12]
[12]Affidavit of Sergeant Astill sworn on 20 August 2014 at paragraphs [5]-[6]
33 Counsel for the plaintiffs submitted that restrictions on the publication of the documents could be imposed. For example, the documents could be released to counsel. As to that submission, the Full Court of the Federal Court determined that if documents are confidential and sensitive then they should not be released to counsel.[13]
[13]Seymour v Price [1998] FCA 1224
Whether the substance of the information or document has already been published: Section 130(4)(e)
34 Counsel for the plaintiffs submitted that the substance of the challenged materials have been made available to the public by video clips published in the media, and by virtue of the fact that the Victoria Police performs its crowd control functions in public. I am not satisfied this amounts to a publication of the substance of the documents and redacted information. Such information as can be garnered from media clips and public demonstrations falls short of the real substance of comprehensive manuals and internal working documents of the Victoria Police. The anecdotal information in media clips and public demonstrations is wholly inferior to internal Police documents being disclosed to the public.
Conclusion
35 Accordingly, for the above reasons I am not persuaded that the redacted portion of the documents are important or relevant in the proceedings. In any event, the public interest in maintaining the confidentiality of Mounted Branch training and tactics so as not to prejudice the effectiveness of Mounted Branch operations and the proper functioning of the State government, outweighs the plaintiff’s interest in accessing the redacted portion of the documents.
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