Ryan v Great Lakes Council

[1998] FCA 1028

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 183 of 1997

BETWEEN:

GRANT RYAN
Applicant

AND:

GREAT LAKES COUNCIL
Respondent

GRAHAM BARCLAY OYSTERS PTY LTD
Second Respondent

CHEVY BAY PTY LTD
Fifth Respondent

JARPAY PTY LTD
Sixth Respondent

STATE OF NEW SOUTH WALES
Nineteenth Respondent

And

GRAHAM BARCLAY DISTRIBUTORS PTY LTD
Twentieth Respondent

JUDGE:	WILCOX J
DATE:	25 AUGUST 1998
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J:   Yesterday morning I handed down a written judgment in respect of a dispute between two parties, the applicant and the nineteenth respondent, concerning production of a document.  After the reasons were published and before he had had any opportunity to read them, Mr Singleton, on behalf of the State, asked me to stay the order I had just pronounced, whereby I required production by 4 pm that day of two appendices to the document.    Mr Singleton indicated his client might wish to apply for leave to appeal against this order.

I indicated I did not propose to stay the order.  I had in mind two things.  First, the trial of this matter is due to commence on 14 September.  It involves many parties and three weeks have been set aside.  It is a matter of concern to me there should be no delay in the trial commencing and no problem about it proceeding in an orderly manner.  Secondly, it seemed to me inconceivable there would be a successful application for leave to appeal in this case.  The decision I had made concerning the production of the appendices was made only after carefully reading them.  My judgment that the appendices were not protected by public interest immunity involved no question of principle.  Insofar as my reasons for judgment dealt with matters of principle, I accepted what had been put to me on behalf of the State.

My assessment was there was nothing in the appendices that would embarrass the government's decision making process.  It seemed to me highly unlikely that any judge of the Court would think it appropriate to have a Full Court review a single judge's assessment concerning a matter such as that, there being no issue of principle involved.  Such an assessment is very much a matter of practice and procedure.  I indicated this view, in abbreviated form, to Mr Singleton.  I told him I thought it was not really a case for an appeal and the documents should be produced by the stipulated time.

Notwithstanding that lack of encouragement, Mr Singleton apparently made an application for leave to appeal to a single judge.  For reasons which I do not understand, that application ended up before a Full Court today.  Apparently the Full Court read the relevant documents.  Mr Singleton indicated that he would not object to production of the documents provided certain parts of appendix 3 were suppressed.  For reasons which I do not understand, the Full Court did not deal with the application for leave to appeal but invited the parties to come back to me. 

I have no continuing function in regard to the motion.  I finally disposed of it yesterday morning.  When I pointed this out to Mr Singleton, he indicated that, procedurally, the appropriate course might be to seek leave to file a notice of motion, made returnable instanter, seeking an order varying the order I made yesterday morning.  No doubt the procedural problem could be dealt with in this way.

I have heard what Mr Singleton has said about the relevant passages and re-examined them.  Having done so, I remain of the opinion there is no legitimate reason, based on the principles governing public interest immunity, why the whole of Appendix 3 should not be discovered.  The State concedes this is a discoverable document; the only question is whether the doctrine of public interest immunity dictates the suppression of the relevant passages.

This was the precise question, in relation to each and every part of the two appendices, that exercised my mind when I read them before writing my judgment.  Although I made no comment about individual passages, I of course carefully read all the document in order to determine whether there was anything there that ought to be prohibited from disclosure. 

When I look at the particular passages identified by Mr Singleton, I confess I find almost ludicrous the submission that they are somehow different from the remainder of the document.  The passages on page 2 are simply a summary in dot form of general points.  They are not specific; they do not deal with policy issues.  They may forensically embarrass the State in the current litigation; although it is not clear to me how the applicant could make much use of those points, except perhaps in the course of cross-examination.

There is a half sentence on page 4 which contains an observation about purification plants.  This is put in the language of surmise and comes from an unidentified author.  It is an opinion upon which everybody in the industry would probably have a view.  People may or may not agree with the opinion expressed.  It is difficult to see how that expression of opinion, even if it became public knowledge, could cause any damage to the public welfare, in the sense used in the authorities on public interest immunity.  It certainly could have no effect on the decision making process which is the relevant area for present purposes.

The sentence on page 5 is apparently a reference to the outbreak of hepatitis, which gave rise to the present litigation.  It expresses a conclusion that may or may not coincide with the conclusion I reach at the end of the evidence.  Again there is no identification of the person whose opinion is expressed.  There is no possible way in which this could affect Cabinet's decision making process.

Finally, on page 9 there is one sentence containing a recommendation for New South Wales Fisheries to take particular action. 

I can understand some sensitivity in the minds of those who are acting for the State Government in the present litigation but it is worth emphasising that public interest immunity is not a mechanism to protect people from being embarrassed in litigation.  Superior officers frequently call for reports following a disaster.  This must often occur and indeed experience indicates it does occur; including in the private sector where, for example, there is an accident in a large establishment such as a factory or hospital or the like.  Officers are asked to investigate what happened and prepare a report for the benefit of senior management.  Mr Singleton submits that, if a document such as this is disclosed, people in the public service who are asked in future to report on the causes of accidents will be disinclined to frankness.  With every respect to him I think that submission is unfair to public servants.  I see no reason to attribute a lack of candour to public servants, any more than I would attribute it to people in private industry who are asked to report on disasters.

I remain unpersuaded there is any legitimate reason to suppress any part of this document.  Indeed, it seems to me that, in terms of the decision making process, it would cause no problem even if the document received widespread media publicity.  Of course, this will not be the result of production on discovery.  If it is discovered, it will be subject to the usual restrictions on the use of discovered documents.

Treating the matter before me as if it was procedurally in order, I dismiss the application.  If any costs have been occasioned by the matter coming back to me this afternoon, then they ought to be paid by the State.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated:             25 August 1998

Counsel for the Applicant:	J B R Beach
Solicitor for the Applicant:	Slater & Gordon
Solicitor for the Respondent:	P Singleton of the Crown Solicitor