Ryan v Great Lakes Council (No 4)

[1998] FCA 998

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE – Discovery of documents - Claim of public interest immunity of otherwise discoverable document - Source of applicable law – Whether common law principles are affected by s 130 of Evidence Act – Cabinet Minute containing Ministerial submission with annexures – Minute considered by Cabinet but deliberations incomplete – Obvious immunity of submission itself – Inspection of annexures – Some annexures provided detailed information supporting Minister's recommendations – Immunity applies – Other annexures merely provide information about past and present facts without disclosing Minister's position – Information in public domain – Claim of immunity rejected.

Evidence Act 1995 s 130

GRANT RYAN v GREAT LAKES COUNCIL, GRAHAM BARCLAY OYSTERS PTY LTD, CHEVY BAY PTY LTD, JARPAY PTY LTD, STATE OF NEW SOUTH WALES, GRAHAM BARCLAY DISTRIBUTORS PTY LTD

NG 183 of 1997

WILCOX J
24 AUGUST 1998
SYDNEY

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

BETWEEN:

GRANT RYAN
Applicant

AND:

GREAT LAKES COUNCIL
First 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 OF ORDER:

24 AUGUST 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. It be declared that the State of New South Wales is not required to produce on discovery any part of the document identified as "New South Wales – Confidential Cabinet Minute 39-98" other than Appendices 2 and 3;

1. Appendices 2 and 3 be produced, by way of discovery, by the State of New South Wales to the applicant, Grant Ryan, by 4 pm today.

1. The costs of the motion filed by the State of New South Wales on 8 July 1998 be costs in the principal proceeding, as between the said applicant and the State of New South Wales.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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

BETWEEN:

GRANT RYAN
Applicant

AND:

GREAT LAKES COUNCIL
First 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:	24 AUGUST 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT (NO 4)

WILCOX J:    An issue has arisen, as between the applicant and the nineteenth respondent, the State of New South Wales ("the State"), concerning discovery of a document.  The document is in the possession of the State and it is conceded that, but for public interest immunity, it would be discoverable in this proceeding.  However, the State claims it is justified in refusing to discover the document, or any part of it, because disclosure would be contrary to the public interest.

The motion

The applicant has not served any subpoena or notice to produce in relation to the document, but I understand the parties discussed the matter between themselves on the basis such a demand had been served.  They failed to agree.  On 8 July 1998, the State filed a Notice of Motion seeking a declaration that it is not required to produce the document, identified as "Confidential Cabinet Minute 39-98".

The motion came on for hearing on 3 August 1998.  It soon became apparent that the supporting evidence was seriously deficient.  Mr J Beach, counsel for the applicant, contended I should dismiss the motion.  However, as the motion raised a public interest issue, I acceded to an application by Mr P Singleton, solicitor for the State, for an adjournment of the hearing for a time sufficient to enable him to file further evidence.  I directed that any further evidence be filed within seven days and legal argument proceed thereafter on the basis of written submissions.

On 10 August 1998 Mr Singleton filed a further affidavit and forwarded a written submission supporting the claim of public interest immunity.  The affidavit was made by Roger Bruce Wilkins, Director-General of The Cabinet Office of New South Wales.  Mr Wilkins exhibited to his affidavit a document that he described as "a Confidential Cabinet Minute of the Government of New South Wales", being numbered 39-98.  He said he had read the document and its title is "Report and Recommendations of the Wallis Lake Inter-Departmental Task Force".  Mr Wilkins described the document as a submission to the Cabinet signed by Dr Andrew Refshauge MP, the Deputy Premier and Minister for Health.  Mr Wilkins said the Minute includes one attachment (called "Attachment A") and three appendices (Appendices "1", "2" and "3").

Mr Wilkins said the Task Force was convened pursuant to a direction of the Premier of New South Wales with the following terms of reference:

·"Develop and implement criteria for the opening of Wallis Lake for oyster production.

·Complete the epidemiological, microbiological and environmental investigations in Wallis Lake,

·Review the regulatory roles and responsibilities of all agencies involved in estuarine management as they relate to the safety of oyster production.

·Ensure that a comprehensive quality assurance program was introduced which maximised the safety of oyster product.

·Produce a report on the outbreak and make recommendations to the NSW Cabinet about the prevention of future oyster-related outbreaks."

In his affidavit, Mr Wilkins went on:

"Confidential Exhibit RBW1 is a report and recommendation presented to Cabinet by Dr Refshauge following an earlier request from the Premier.  It addresses matters of high public policy and the conduct of the public affairs of the State.  I am informed by Dr Refshauge and verily believe that the main part of the said Minute (that is, that part which Dr Refshauge signed, being the whole of the Minute except for the attachment and appendices) was written in response to the Premier's request for a report and for the sole purpose of being submitted to the Cabinet to assist the Cabinet in considering matters of high public policy and administration.  I am informed by Michael Reid (the Director-General of the Department of Health) and verily believe that Attachment A and Appendices 1 and 3 were written in response to the Premier's request and for the sole purpose of being submitted to the Cabinet to assist the Cabinet in considering matters of high public policy and administration.  I am informed by Mr Reid and verily believe that Appendix 2 was written partly in response to the Premier's request and partly in accordance with the usual practice of the Department of Health in responding to food-borne disease outbreaks in New South Wales, and that Appendix 2 is presently confidential but it is presently intended – after refinement and should the Minister for Health so approve – to submit the document to a scientific journal for consideration for publication in 1999 or 2000."

Mr Wilkins said the Cabinet Minute was submitted to the Cabinet Office on 18 March 1998 and considered by Cabinet on 29 April 1998.  He added that Cabinet has adjourned its deliberations on the Minute to a date to be fixed.  No final decision has been made on the matters raised, and recommendations made, in the Minute.  Mr Wilkins then set out reasons for the view that it is contrary to the public interest to compel disclosure of Cabinet Minutes.  In the course of those reasons, he said the subject document "deals with public policy and administration in respect of matters of high importance, namely as part of the food supply of New South Wales and the health and safety of residents of New South Wales".

Legal Principles

There is a question as to the law now applicable to the determination of a claim of public interest immunity. Mr Beach contends the common law principles that formerly governed claims of public interest immunity should be regarded as having been modified by s 130 of the Evidence Act 1995. That section provides:

"130(1)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.

(2)The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).

(3)In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.

(4)Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:

(a)prejudice the security, defence or international relations of Australia; or

(b)damage relations between the Commonwealth and a State or between 2 or more States; or

(c)prejudice the prevention, investigation or prosecution of an offence; or

(d)prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or

(e)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or

(f)prejudice the proper functioning of the government of the Commonwealth or a State.

(5)Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters:

(a)the importance of the information or the document in the proceeding;

(b)if the proceeding is a criminal proceeding – whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor;

(c)the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;

(d)the likely effect of adducing evidence of the information or document, and the means available to limit its publication;

(e)whether the substance of the information or document has already been published;

(f)if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant – whether the direction is to be made subject to the condition that the prosecution be stayed.

(6)A reference in this section to a State includes a reference to a Territory."

It will be noted this section deals with the admission into evidence of a document or information, not pre-trial discovery or production of documents.  The Act does not directly deal with the latter topic.  However, in Adelaide Steamship Co Ltd v Spalvins (1998) 152 ALR 418, a Full Court of this Court considered the analogous question of the effect of Division 1 of Part 3.10 of the Evidence Act upon the obligation of a person to produce on subpoena documents that are the subject of a claim of client legal privilege. Division 1 deals, in terms, only with adduction of evidence and the Full Court held (at 427) it had no direct application to ancillary proceedings; the obligation to produce documents in response to a subpoena remains governed by the common law. However, the Court approved this comment of McLelland CJ in Equity, of the New South Wales Supreme Court, in Telstra Corporation v Australis Media Holdings [No 1] (1997) 41 NSWLR 277 at 279-280:

"If principles of client legal privilege … applicable to the adducing of evidence were to differ from those applicable to ancillary processes, the consequences would be anomalous, conducive to confusion and disorder in the preparations for and conduct of proceedings, and verging on the absurd.  The adducing of evidence of a hearing and ancillary processes are functionally linked.  Moreover, both may occur at the same time and place … If different principles of client legal privilege were applied to the operation of the production of the document on the one hand, and the adducing of evidence in the application on the other, in situations of this kind, quite impractical consequences could ensue."

The members of the Full Court went on to say that, although they accepted it is the common law that determines the availability of a client legal privilege claim in ancillary processes, the common law needed to be adapted to the principles adopted by the Act in relation to the adduction of evidence.

Parity of reasoning dictates that a similar course be taken in relation to claims of public interest immunity; s 130 should be regarded as providing the principles to be applied, as a matter of common law, in determining claims in ancillary proceedings. As it happens, in contrast to the situation concerning client legal privilege, there is little difference between the principles contained in s 130 and those enunciated in earlier judicial decisions.

In Commonwealth of Australia v Northern Land Council (1993) 176 CLR 604, Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ said at 616:

"… it is hardly contestable that documents recording the deliberations of Cabinet fall within a class of documents in respect of which there are strong considerations of public policy militating against disclosure regardless of their contents.  But, whatever the position may have been in the past, the immunity from disclosure of documents falling within such a class is not absolute.  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.

Their Honours adopted a comment by Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1 at 43:

"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 documents under consideration in the Northern Land Council case were notebooks containing notes made by Cabinet or Departmental Officers of the deliberations of the federal Cabinet or of Cabinet committees.  Sankey v Whitlam concerned documents placed before a meeting of the federal Executive Council. It will be noted the High Court Justices were prepared to regard documents of this nature as being within a class of documents having a strong claim to protection, but they said this claim was not absolute and it must be weighed against the needs of the proper administration of justice. That principle is fundamental to s 130 of the Evidence Act and enshrined in subs (1) of that section.  In carrying out the balancing task, the court must consider, amongst any other factors supporting protection, those itemised in subs (4) and, amongst those favouring disclosure, the factors listed in subs (5).  These are all relevant factors under the common law.  Moreover, subs (3) reproduces the common law rule that the court may inform itself about the relevant factors in any way it sees fit; this includes inspection by the judge in a doubtful case: see Northern Land Council at 619.

The contentions of counsel

Mr Beach points out there are sub-classes within the broad class commonly called "Cabinet documents".  In Sankey v Whitlam at 39, Gibbs ACJ distinguished between "Cabinet minutes and minutes of discussions between heads of departments", "papers brought into existence for the purpose of preparing a submission to Cabinet" and "documents which relate to the framing of government policies at a high level". Mr Beach observes the distinction between the first and second category was emphasised in the joint judgment in Northern Land Council at 614-615 where their Honours noted the documents then under consideration "are documents which record the actual deliberations of Cabinet or a committee of Cabinet. They are not documents prepared outside Cabinet, such as reports or submissions, for the assistance of Cabinet". As Mr Beach says, the document under present consideration falls into the latter category.

On the other hand, it is clear from Mr Wilkins' affidavit that what Mr Singleton calls "the main part of the Minute", at least, is a submission to Cabinet from the responsible Minister concerning matters of government policy and administration.  Mr Singleton argues this submission has no lesser status than a note of an oral submission by the Minister at the commencement of Cabinet deliberations.  He points out that documents prepared for consideration by Cabinet have generally been accorded a level of protection similar to those recording Cabinet deliberations: see, for example, Lanyon Pty Limited v Commonwealth of Australia (1974) 129 CLR 650.

Mr Beach submits Mr Wilkins' affidavit is unsatisfactory at a number of levels: the affidavit was not made by the relevant Minister, Dr Refshauge, or the Premier; Mr Wilkins does not demonstrate personal responsibility for, or even acquaintance with, the relevant field of policy; the affidavit relies on many generalised assertions – for example, "Production of the document would also risk creating interference with the Cabinet deliberations …" – and makes too wide a claim.  In relation to the last matter, Mr Beach criticises Mr Wilkins' failure to distinguish between those parts of the document that relate to policy, or make recommendations for future action, and those that analyse historical facts.  Although Mr Beach's primary position is that access should be granted to the whole document, he alternatively contends there should at least be disclosure of those parts that constitute a report about past events.  He makes the point that, to the extent the document is a report of an Inter-Departmental Task Force, its contents must already be known to the members of the Task Force.

Mr Beach says it is unnecessary for me to inspect the document before determining the motion in his favour but, if I have any doubt about that proposition, I can, and should, inspect it for myself.  Not surprisingly, Mr Singleton puts the same submission, looking at the matter from the State's point of view.

Mr Singleton refers at some length to cases emphasising the high degree of protection that will ordinarily be accorded to Cabinet minutes, including documents prepared for submission to Cabinet.  He says no distinction should be drawn between the various parts of the subject document; it should all be accorded protection.  He also contends the applicant has failed to establish the "legitimate forensic purpose" for which he seeks access; so he fails at the outset, no balancing exercise is necessary.  In that connection he cites R v Saleam (1989) 16 NSWLR 14, a decision of the New South Wales Court of Criminal Appeal.

Conclusions

I do not accept Mr Singleton's submission that the applicant fails at the outset.  Saleam was an appeal against criminal convictions in support of which the appellant directed to the Commissioner of Police a wide-ranging subpoena.  It required production of every document relating to the investigation and prosecution of the offences with which the appellant and a co-accused had been charged, together with the reports of any investigation into allegations of perjury committed by the principal Crown witness in the committal proceedings and at trial.  It is not surprising the Court of Criminal Appeal sought to be satisfied about the relevance of all the documents falling within this broad description.  By contrast, Mr Singleton expressly concedes the document the subject of the present case is discoverable.  The majority members pointed out in Northern Land Council at 613-614 that the Commonwealth concession in that case that the subject notebooks were discoverable meant "it was to 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 inquiry which would, either advance the Northern Land Council's case or damage that of the Commonwealth". The same principle applies in the present case; it must be assumed the Cabinet Minute relates to matters in issue, in the same sense. That is a sufficient forensic purpose for seeking access. The balancing exercise must be undertaken.

After considering Mr Wilkins' affidavit and the parties' submissions and without inspecting any part of the document, I reached a firm conclusion that what Mr Singleton calls "the main part of the Minute" should be protected from disclosure.  Although the relevant affidavit is not made by a Minister, it is made by the senior official of the Cabinet Office, a person who has been able to inform the Court about the provenance, nature and use of the document.  He is able to say, and does say, that the document has been before a meeting of Cabinet, but Cabinet deliberations are not yet complete.  In other words, he proves this is a submission by the responsible Minister concerning a matter of policy and government administration that is still before Cabinet.  It is unnecessary for the Court to know more than this; it does not matter that Mr Wilkins has no special expertise in the relevant field of policy.

I take Mr Beach's point that this document is only a submission; it does not record Cabinet deliberations.  Nonetheless, as Mr Singleton says, it is a statement, for the benefit of Cabinet colleagues in relation to a matter coming before them, of the position of the responsible Minister on a current matter of public importance.  The authorities establish that courts should order disclosure of such a document only in exceptional circumstances.  No exceptional circumstances are evident in this case.

The situation in relation to the attachment and three appendices was less clear to me.  A document does not achieve public interest immunity merely because it has been attached to a Cabinet submission.  It may be a document whose publication would do no injury to the public weal; indeed, it may already have been widely published.  Subject to legitimate forensic purpose, parties are entitled to the court's ruling on public interest immunity in connection with each attachment to a principal document.

In his affidavit Mr Wilkins said he was informed by Michael Reid, Director-General of the Department of Health, and verily believed:

"that Attachment A and Appendices 1 and 3 were written in response to the Premier's request and for the sole purpose of being submitted to the Cabinet to assist the Cabinet in considering matters of high public policy and administration."

This description suggested the likelihood that Attachment A and Appendices 1 and 3 fell into the same category as the submission itself; that they contained detailed information regarding the Minister's recommendations.  However, I was not certain this was what was being said; so I inspected these three ancillary documents.  In relation to Attachment A and Appendix 1, the inspection confirmed the impression I gained on reading Mr Wilkins' affidavit.  Although I have not read Dr Refshauge's submission, it was readily apparent to me that these documents were intended to provide detailed information about his recommendations.

However, Appendix 3 is a rather different document.  It bears the heading "An Evaluation of Oyster Industry Safeguards", and opens with a photocopy of an article published in a Sydney newspaper in March 1997.  The document then summarises what it calls "Weaknesses in Current Safeguards" and refers, over 12 pages, to occurrences of oyster-borne disease overseas and in Australia and the current New South Wales controls on oyster safety.  A large proportion of the analysis is concerned with the laws currently in place, although some reference is also made to current administrative practices and weaknesses.  Reference is made to current action by the Waterways Authority in relation to the control of sewage discharge from vessels.

While I can understand that Dr Refshauge thought it might be useful for his Cabinet colleagues to have the information set out in Appendix 3 for the purpose of considering his submission, this is not really part of the submission.  Nothing in Appendix 3 gives any hint of any view Dr Refshauge might hold in relation to future action or as to the nature of his recommendations.  Nor, it seems, does it contain any information that might be regarded as confidential to government; the whole of the factual material seems to be within the public domain.  This document could have been created by a researcher working outside government ranks.  A reader of the material might find the situation it reveals unsatisfactory, and thereby be caused to make representations to the government or indulge in other political activity; but the doctrine of public interest immunity is not intended to protect governments and Ministers from political pressures.  It is intended to avoid embarrassing the decision-making process.  Disclosure of this information would not have that result; the claim of public interest immunity must be rejected in relation to Appendix 3.

In his affidavit Mr Wilkins said he was informed by Mr Reid and believed:

"that Appendix 2 was written partly in response to the Premier's request and partly in accordance with the usual practice of the Department of Health in responding to food-borne disease outbreaks in New South Wales, and that Appendix 2 is presently confidential but it is presently intended – after refinement and should the Minister for Health so approve – to submit the document to a scientific journal for consideration for publication in 1999 or 2000."

That description did not suggest to me that Appendix 2 ought to be regarded as subject to public interest immunity; it sounded as if the document was simply a factual report about the incidence of food-borne diseases in New South Wales.  However, as I had some doubt about the situation, I also inspected Appendix 2.  The inspection confirmed my tentative view.  The document is entitled "The Investigation and Implications of the Wallis Lake Outbreak".  It is a report, presumably by the Inter-Departmental Task Force, concerning the outbreak of hepatitis A that gave rise to this proceeding.  It is a purely factual document setting out information about the epidemiology of hepatitis A, generally and in early 1997, and the results of a trace-back investigation into the origin of oysters consumed by people who suffered hepatitis A infection at that time.  The document contains no recommendations and gives no hint as to any views held by the Minister.  Its publication would not embarrass Cabinet consideration of the Minister's submission.  The claim of public interest immunity in relation to this document must also be rejected.

Orders

I propose to dispose of the motion by: 

(a)declaring that the State is not required to produce on discovery any part of the document identified as "New South Wales – Confidential Cabinet Minute 39-98", other than Appendices 2 and 3, and;

(b)ordering that Appendices 2 and 3 be produced, by way of discovery to the applicant, by 4 pm today.

I will return the exhibit to Mr Singleton.

In relation to costs, each party has had some success.  I think the appropriate order is that the costs of the motion be costs in the principal proceeding as between the applicant and the State.

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated:             24 August 1998

Counsel for the Applicant:	J B R Beach
Solicitor for the Applicant:	Slater & Gordon
Solicitor for the Nineteenth Respondent:	P Singleton of the Crown Solicitor
Date of Hearing:	3 August 1998
All written submissions received by 21 August 1998