Sandy v SA Womens Health Network - [2017] SADC 102

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Under Freedom of Information Act)
SANDY v SA WOMENS HEALTH NETWORK
[2017] SADC 102
Judgment of His Honour Judge Stretton
18 September 2017
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - REVIEW OF DECISIONS - OTHER STATES AND TERRITORIES
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - RIGHT OF ACCESS - GENERALLY
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS - DOCUMENTS AFFECTING ENFORCEMENT OR ADMINISTRATION OF THE LAW
Section 41(1) of the Freedom of Information Act provides that in any appeal to the District Court in which it is claimed that a document is a restricted document the Court must on the application of the agency concerned receive evidence and hear argument in the absence of the public and the other party to the appeal. The section goes on to provide... "and, where in the opinion of the District Court it is necessary to do so in order to prevent the disclosure of any exempt matter, the party's representative". A dispute arose as to whether the disclosure of exempt matter by that restricted document absolutely precludes the presence of the other party’s counsel, or whether counsel may be present for the restricted document and evidence and argument relating to it as long as the court is satisfied that counsel’s presence will not lead to any disclosure to the public and the party. Issues of forensic advantage and procedural fairness are raised.
The meaning of section 41(1) of the Freedom of Information Act discussed.
HELD:
1. Section 41(1) requires the court to assess whether exclusion of the other party’s counsel is necessary to ensure that exempt matter is not disclosed to the public and the other party to the appeal. The section does not prohibit the presence of opposing counsel where the District Court is not satisfied that it is necessary to do so in order to prevent the disclosure of any exempt matter to the public and counsel’s client.
2. A comprehensive undertaking as to confidentiality by counsel will ordinarily be a precondition to, but not necessarily determinative of such a conclusion. Such an undertaking has been provided in this matter. The court must then go on to consider the totality of the circumstances.
3. Having regard to all the circumstances of this case, pursuant to section 41(1) it is not necessary to receive the proposed confidential materials in the absence of the appellant’s representative (her counsel) in order to prevent the disclosure of any exempt matter.
4. If the tender of such materials is pressed and they are admitted, counsel for the appellant will have access to them.
Freedom of Information Act 1991 ss 12, 13, 20(4), 41, 41(1); Schedule 1 clauses 4(2)(a)(i) & 4(2)(b) ; K-Generation Pty Ltd and Anor v Liquor Licensing and Anor (2009) 237 CLR 501; Hogan v Hinch (2011) 243 CLR 506; Kable v Director of Public Prosecutions (NSW) 189 CLR 51; Forge v ASIC (2006) 228 CLR 45; International Finance Trust Company Limited and Anor v NSW Crime Commission and Anor (2009) 240 CLR 319; Attorney General (Vic) v The Commonwealth (1945) 71 CLR 237; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; NSW v The Commonwealth (2006) 229 CLR 1; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, referred to.

SANDY v SA WOMENS HEALTH NETWORK
[2017] SADC 102
The action

This action involves an appeal by Ms Alison Sandy, FOI director of Channel Seven Adelaide, acting as agent for Ms Vanessa Small from a decision of the Ombudsman upholding a determination by the respondent SA Health, Women’s and Children’s Health Network (“SA Health”) refusing to release certain medical reports obtained by SA Police (“SAPOL”) into the death of Ms Small’s son.
These reasons relate to a contested interlocutory application by the appellant for her counsel to view certain materials that the respondent has sought to tender on a confidential basis in support of the Ombudsman’s decision to uphold SA Health’s refusal to release the medical reports.
Background
On 2 August 2006 Ms Small’s 2 year old son Tobias Dempsey sustained serious head injuries. He was placed on life support and died two days later on 4 August 2006.
On 8 September 2009 the State Coroner found that Tobias died as a result of blunt force head trauma.
Ms Small filed an affidavit in this matter saying that at the time of the events in question Tobias was being cared for by her then de-facto partner Mr Lachlan Smith. Ms Small says she arrived home at the time when her son’s injuries were discovered and called triple zero. She said she went with him in the ambulance to the hospital and apart from a short trip to get food and items from her home stayed at the hospital until life support was removed two days later.
It is common ground that SAPOL conducted an investigation into the death, but that to date no person has been arrested, charged or convicted of any offence concerning the death.
Ms Small says she obtained access to the Coroner’s Court file and secured copies of documents including witness statements, medical and nursing records and autopsy and brain reports prepared for the coroner. At some stage she also obtained DPP memoranda regarding potential charges.
Initial FOI application
Ms Small says that on 27 November 2012 she applied to SA Health for any documents in the category of “copies of medical files and advice on brain injury”.
Ms Small was advised that a partial release had been authorised, and she was provided with copies of a number of medical reports she had already been given, together with a medical report dated 17 August 2006 by neurosurgeon Dr Cindy Molloy. Dr Molloy was one of the treating neurosurgeons during the period of Tobias’ admission and treatment through to the time of death. Dr Molloy’s medical report reads as a relatively comprehensive account of Tobias’ admission, diagnosis, clinical condition, progress, treatment and eventual death. It concludes:
“In summary Tobias Dempsey was a 2 year old boy who was admitted with a suspicious history of non-accidental injury and had massive cerebral injuries which was incompatible with life right from his admission to the Women’s and Children’s hospital on 2 August 2006 at 17:15. Despite full aggressive treatment the prognosis was fulfilled.
I do not have access to the Coroner’s report, however I felt clinically he was a shaken child who sustained massive cerebral injuries due to vascular injuries from being shaken.
This is not a death that could have been prevented by medical intervention and alternative investigations would not have changed the outcome.
From his time of arrival at the Women’s and Children’s Hospital his death was inevitable and his case has been referred to the Coroner’s Department as a non-accidental injury at home at hands of person not known.”
Ms Small says that she then, in early 2013, asked the DPP for a review of the investigation into Tobias’ death, and agitated in various ways for that to proceed.
Ms Small says that she eventually, on or about 27 February 2015, attended a meeting with a DPP prosecutor who outlined what the DPP had done and informed Ms Small that they had concluded that there was no reasonable prospect of conviction and that accordingly they would close their file. Ms Small says that in the course of the meeting she was told that Dr Molloy had prepared other reports, so she asked for copies of those further reports.
It is common ground that on 19 March 2015 the DPP wrote to Ms Small confirming the decision not to prosecute anyone. That letter also conveyed that the DPP would not be releasing Dr Molloy’s reports to Ms Small. No reasons were given.
Ms Small was unhappy with this and eventually secured the support of Channel Seven to make a further FOI application on her behalf for access to Dr Molloy’s other reports.
Further FOI application and determination
On 14 September 2015 Ms Sandy applied on behalf of Ms Small for access pursuant to sections 12 and 13 of the Freedom of Information Act 1991 (SA) (“the Act”) to a copy of any reports undertaken by Dr Molloy in relation to Tobias Dempsey.
By 30 October 2015 an SA Health FOI officer had located 3 reports within the scope of the request that had not previously been released to Ms Small, and on that day made and communicated a determination to refuse release of those documents. The officer said that as at 2012 Ms Small had requested and been provided with any documentation by Dr Molloy held at that time.
The officer went on to explain the reasons for the refusal of the further requested documents in the following terms:
“… all three reports were created in direct response to requests for a report in relation to a SAPOL investigation. The recipients of these reports were contacted in consultation of the status of the investigation and the impact of potential release. I received a response to the consultation which stated:
‘SAPOL are currently undertaking an investigation relating to Tobias Dempsey and at this time request that the documents are not released under FOI at this time.’
In consideration of the response to the status of the investigation, under consultation, it was determined that the disclosure could reasonably be expected to prejudice procedures for investigating contraventions of the law, and are thus exempt by virtue of one or more of the sub-clauses in clause 4.
In accordance with clause 4(2)(b) disclosure of those documents would, on balance, be contrary to the public interest. Documents relate to information given under an ongoing investigation would not be in the public interest if it could disrupt or prejudice those investigations, I therefore make the determination to refuse the release at this time.”
Internal review
By letter dated 2 November 2015 Ms Sandy sought an internal review of this decision and on 24 November 2015 another SA Health officer conveyed to Ms Sandy that an internal review had been conducted on 13 November 2015, pursuant to which a determination had been made to refuse release of the documents in question on similar grounds.
Further FOI application
On 18 January 2016 Ms Sandy made a further application for release of the reports, this time attaching a copy of a letter from the DPP dated 19 March 2015 stating that the DPP had decided that there was no reasonable prospect of conviction against any person over Tobias’ death.
On 5 February SA Health’s FOI officer replied to the effect that this was the same application that had already been made and rejected, and that in any event SAPOL’s advice as to their ongoing investigation was dated 29^th October 2015, was well after the DPP’s letter of 19 March 2015, and that so far as they were concerned the SAPOL advice as to a current investigation was still correct.
External review
On 8 March 2016 Ms Sandy applied to the Ombudsman seeking an external review, arguing that the DPP letter established that the SAPOL investigation was in fact now closed, and that SA Health had failed to internally review the matter and had refused to make a decision in relation to the most recent application.
On 14 April 2016 the Ombudsman replied requesting further information, and said that the fundamental issue was whether SA Health could justify its determination that the documents were exempt pursuant to clause 4, which turned on the status of any SAPOL investigation, and that as such he had requested that SA Health obtain information from SAPOL as to the current status of the investigation.
On 7 July 2016 SAPOL wrote to the Ombudsman saying that SAPOL had a current open investigation relative to the death of Tobias Dempsey and that disclosure of the 3 documents concerned could reasonably be expected to prejudice that investigation.
On 27 July 2016 the Ombudsman conducted an external review of SA Health’s decision and arrived at a provisional determination to confirm the decision, on the basis that the SAPOL letter dated 7 July satisfied the Ombudsman that per clause 4(2)(a)(i) the release could reasonably be expected to prejudice the investigation of a particular case, and that release was also contrary to the public interest pursuant to clause 4(2)(b) because of the public interest in protecting the integrity of police investigations.
In response to this provisional determination Ms Sandy submitted to the Ombudsman that they had provided documentation to the effect the investigation was closed and that no-body was charged, no doubt a reference to the letter from the DPP; that the events were over 10 years old and that surely there must be a limit to the timeframe the police should be permitted to keep saying the investigation was proceeding, and that surely if someone was going to have been charged they would have been by now.
Ms Sandy submitted to the Ombudsman that all SA Health were doing as an agency, appeared to be relying on the word of another agency in the form of SAPOL, and she asked the question, in effect, where was the actual proof of the fact that the investigation was continuing, and where was the proof of the assertion that disclosure would jeopardise the investigation? She argued that those things needed to be justified and proven by SAPOL rather than just asserted by SAPOL to the Ombudsman.
On 16 August 2016 the Ombudsman confirmed the determination. His reasons were essentially that while he had regard to the fact that on 19 March 2015 the DPP had written to Ms Small stating that it had been determined that there was no reasonable prospect of conviction against any person with respect to any charge, SAPOL had written to him on 7 July 2016 that there was a current open investigation into Tobias’ death and that disclosure of the three documents could reasonably be expected to prejudice the investigation. The Ombudsman said he accepted this letter and statement ‘as evidence that there is a current open police investigation and that disclosure of the documents could reasonably be expected to prejudice that investigation.’
Although the appendix to the provisional and final determination indicate that the agency, meaning SA Health, were asked for and provided ‘submissions and documentation’, it is not entirely clear whether the ‘documentation’ included the three medical reports in question.
What is clear is that nothing more than the statement that there was an open investigation and that disclosure would prejudice it was received from SAPOL, either by the agency or the Ombudsman. In other words there was nothing said about the scope, timing or nature of the investigation and the degree to which it was or was not progressing, and nothing was said by SAPOL as to why or how the disclosure might prejudice that investigation.
As to the requirement that non-disclosure be in the public interest, the ombudsman said:
I acknowledge the public interest in the mother of a deceased child having access to information relating to the circumstances around the death of the child. I also note the applicant’s assertion that there is an argument for public accountability relating to patient deaths.
I must however weigh this against the public interest in protecting the integrity of police investigations. In my view, this consideration is important in this case and outweighs the considerations that favour disclosure.
Therefore on balance I am satisfied that it would be contrary to the public interest to disclose the documents within the scope of the application.
It is my view that the documents within the scope of the application are exempt pursuant to clause 4(2).
Determination
In light of my views above, I confirm the agency’s determination.
The appeal
Ms Sandy has appealed to the District Court against that determination, on the grounds that the Ombudsman erred in the following ways;
(i)In failing to consider whether the Respondent had in fact sufficiently discharged its onus to justify its decision in its Determination dated 30 October 2015 that Dr Molloy’s reports were exempt pursuant to clause 4(2)(a)(i) of Schedule 1 to the Freedom of Information Act 1991 (SA);
(ii)failing to sufficiently discharge its onus to justify its decision in its Determination dated 16 August 2016 that the Respondent’s decision that Dr Molloy’s reports were exempt pursuant to clause 4(2)(a)(i) of Schedule 1 to the Freedom of Information Act 1991 (SA) should be upheld;
(iii)accepting the letter from SA Police dated 7 July 2016 as evidence of the requirements of clause 4(2)(a)(i) of Schedule 1 to the Freedom of Information Act 1991 (SA) without apparent analysis of the evidentiary weight of that letter in light of the matters raised in the Appellant’s detailed submission dated 9 August 2016;
(iv)giving undue weight, without making further investigations, to the letter from SA Police dated 7 July 2016 when determining whether disclosure of Dr Molloy’s report would be contrary to the public interest;
(v)failing to give weight, or sufficient weight, to the matters raised in the Appellant’s detailed submission dated 9 August 2016 when determining whether disclosure of Dr Molloy’s report would be contrary to the public interest;
(vi)failing to consider whether the Respondent had considered, or complied with, the requirements of section 20(4) of the Freedom of Information Act 1991 (SA), pursuant to which the Respondent should have at the very least provided the Appellant with a redacted copy of Dr Molloy’s reports with the exempt matter removed;
(vii)failing, in reviewing the Respondent’s determination, to consider, or comply with, the requirements of section 20(4) of the Freedom of Information Act 1991 (SA); and
(viii)failing to determine that the Respondent should, at the very least, provide the Appellant with a redacted copy of Dr Molloy’s reports with the exempt matter removed.
The primary thrust of these grounds of appeal are that the Ombudsman simply took SAPOL’s word for the fact that there was a current open investigation and just accepted at face value SAPOL’s statement that release of the documents could reasonably be expected to prejudice the investigation without critically assessing either, and in particular without substantively considering how, why and whether the release documents could actually be expected to prejudice the investigation.
At the outset of these proceedings the respondent sought to tender several affidavits confidentially, in other words without disclosure to the applicant. The affidavits annex the medical reports in question and purport to explain how the documents could reasonably be expected to prejudice the investigation. The respondent also foreshadowed an application to call a police officer to give confidential supplementary oral evidence, however by agreement he provided a confidential supplementary affidavit directed to further explain the respondent’s position that the documents could reasonably be expected to prejudice the investigation.[1]
The issue - appellant counsel’s access to the material the respondent seeks to tender confidentially on this appeal
[1] Transcript of hearing, 11 July 2017 at pages 83—88.
Ms Sandy submitted that her counsel ought to be permitted to inspect the documents that the respondent seeks to tender confidentially so as to enable her counsel to properly argue that the Ombudsman was wrong and that the medical reports should be disclosed to her. In support of the submission Ms Sandy’s counsel has filed a comprehensive undertaking not to disclose the documents or any information they contain to her or anyone (“the undertaking as to confidentiality”).

The respondent has objected to this course.
The respondent has requested that the court publish formal reasons for its interlocutory decision as to this issue, so that the respondent may consider its position as to an interlocutory appeal. In light of the importance of the issue and in an abundance of caution the hearing was adjourned for this purpose, on the basis that the respondent pay the appellant’s costs occasioned by the adjournment.
Preliminary considerations
To properly consider the issue of access to the material it is worth revisiting some basic concepts.
In any Freedom of Information proceedings where the issue is whether a party should have access to documents, the vexed issue of whether anyone should have access to the documents for the purposes of arguing the case may well arise, as indeed it has in this case. Naturally the party seeking access will want to assess whether the document concerned falls under whatever legal principle is being used to deny them access, and potentially argue that the document does not fall within that legal principle and that accordingly access should be provided. The possessor of the document who is resisting disclosure knows the contents and can mount general arguments in open court based on that knowledge to support their case. That gives them a forensic advantage. If that party is also allowed to mount arguments or call evidence in the absence of the other party to support their position, that forensic advantage is significantly increased.
On the other hand, if the other party is also given access to the document for the purpose of arguing that it should be disclosed, then the document has been provided and access granted before the issue has been adjudicated, which is unfair to the party resisting its provision. If the document should not have been provided as it did fall within the relevant legal principle prohibiting disclosure, then it will have been wrongly, perhaps unlawfully disclosed, depending on what principle or law is said to prohibit the disclosure.
In light of this, it is both logical, and uncontroversial law, that the documents not be provided to the parties seeking them for the purposes of arguing whether they should be provided.
This will be because, when faced with a choice, the law will usually prefer a procedural option involving a degree of procedural advantage or disadvantage to an alternate procedural option which defeats the entire purpose of the litigation in question.
Hence, the documents cannot in ordinary circumstances be provided to the party seeking them before or during the litigious process being held to determine the appropriateness of access to them.
Providing the documents themselves to the court itself will ordinarily enable the court to assess for itself whether they fall within the principle denying access. If no-one makes any submissions about the documents themselves, then the mere provision of them to the court would not ordinarily render any forensic/procedural advantage to either party.
If the party resisting access makes general arguments in open court (which do not disclose the contents), as mentioned they will have some forensic/procedural advantage as they know the contents of the documents and can address their general arguments accordingly, but it will only be a mild advantage, as the party seeking access can at least hear, respond to and attempt to counter such general arguments that are made by the party resisting access.
There will of course be instances where the provision of the documents without more will not necessarily assist the court, for example where the documents cannot be understood by laypersons and hence the judge, or their significance cannot be understood by a layperson and hence the judge, or the reason for their falling within a principle requiring non-disclosure is not necessarily apparent on the face of the document. In that instance the party in possession of the documents may well wish to submit material confidentially to explain what the document actually means if not apparent to the layperson, or why the documents fall within the relevant principle, such as for hypothetical example why they pose a threat to national security or disclose police investigational methodology, and hence confidentially submit arguments and further evidence as to why the material remain undisclosed.
The moment that happens, forensic advantage and procedural unfairness are significantly magnified. It is one thing to have a court look at a document privately and assess it against objective criteria, it is quite another to allow one party to call evidence and make submissions privately to the court without the other party knowing the nature of the evidence or the submissions made. All the checks and balances inherent in, and many of the principles which underlie, the adversarial system as a system likely to deliver a just result are potentially severely impeded the moment secret evidence and submissions can be made by one party in the course of an adversarial proceeding.
Yet, the court may not be able to understand the documents in question or why they are said to be non-disclosable, without such evidence.
In this situation, the contest between significant forensic advantage and the loss of procedural fairness on the one hand, and on the other hand the court being best assisted to understand the issues becomes dramatic, and the answer as to which principle should be ascendant less obvious.
I suppose even in that event, procedurally unfair as it is, a procedurally unfair process might be said to still be preferable to a process where either the court cannot understand the issues or the very purpose of the litigation is itself defeated. In such a situation, the judge remains objective and impartial and needs to be palpably aware of the evidential and advocatorial imbalance.[2] Nonetheless it is an undesirable state of affairs and likely to be an unpalatable process to a court otherwise versed in and committed to procedural fairness.
[2] K-Generation Pty Ltd and Anor v Liquor Licensing Court and Anor (2009) 237 CLR 501, per Kirby J at 579.
Accepting this judicial dilemma, Ms Sandy has proposed that her counsel be given access to the documents on a confidential basis, so that her case may be more fairly and effectively argued. Hence the confidentiality undertaking. On that basis it is suggested that procedural fairness can be achieved, and at the same time the confidentiality of the documents will still be maintained pending a decision as to their disclosure.
In principle this is an attractive proposition.[3] It does however rely entirely on the undertaking to prevent further disclosure to the public and counsel’s client.
[3] K-Generation Pty Ltd and Anor v Liquor Licensing Court and Anor (2009) 237 CLR 501, per French CJ at 526.
The bench likes to believe that counsel as a genre will always adhere strictly to their undertakings to a court, and by and large that belief is well founded.
However, counsel, like everyone else, are human, fallible beings. As such, whilst the long experience of this court is that counsel will usually do their best to adhere to their obligations and undertakings to the court, they can be subject to pressures, temptations and mistakes like anyone else. In certain circumstances one can also imagine situations where counsel may come under extreme pressure even threats from their clients, associates of their clients or others to disclose confidential documents they have viewed.
To use an entirely hypothetical example, say documents in question revealed highly confidential police drug investigation methodologies, or the status of investigations into a number of members of a criminal or terrorist group one of which was the client, or perhaps the document revealed who the informant was who had ‘ratted’ on the defendant, it is not hard to imagine extreme pressure, threats or worse being brought to bear on that lawyer to disclose that information. Where the lawyer was dependant on ongoing work from that hypothetical criminal group, the group might also threaten to withdraw all their work unless the information was quietly disclosed to them.
Whilst this is just one possible example, it highlights that there are a range of circumstances not beyond the bounds of reasonable possibility, where there would be material risk that the undertaking would be subject to pressures it could not withstand.
After all, human nature being what it is, undertakings are just promises by not-always-perfect human beings.
So, how does all this inform the approach a court should take to a submission that a counsel who has given a confidentiality undertaking be permitted to view the documents in question. It is fundamental from the assumptions underlying the adversarial system that the court will be materially assisted if both counsel are able to freely and frankly assess the documents and any evidence and submissions tendered to explain the documents’ need for non-disclosure. It is also fundamental that the documents not be disclosed to the public until the case has been heard and considered.
In principle those aims can both be largely achieved where counsel for the party seeking disclosure gives a completely reliable confidentiality undertaking such that counsel has access to the documents and evidence tendered by the other side and can argue the case on a procedurally fair basis, yet the documents are not publicly disclosed.
Such a process is an initially attractive one, as it avoids the truly unpalatable choice earlier referred to of having to choose between the significant forensic advantage and procedural unfairness likely to be inherent in non-disclosure of the documents, supporting evidence and submissions to the one side, or disclosing the material for the purpose of the assessment and in doing so defeating the purpose of the litigation, or indeed a third option wherein the court remains largely in the dark by not allowing the tender of anything not disclosed to the other side.
The process of allowing counsel access for the purpose of argument would however require the court considering the issue, to make an assessment of the likely reliability of the undertaking. That would not always be a comfortable or easy process in itself, as it might logically require an assessment of the practitioner concerned, their client, possibly the client’s associates, and of any material risk of pressures, temptations and threats. How would the court inform itself as to those things, or would the court just proceed on the basis of what was before it, and do the best it could, in coming to a view as to the reliability of any proposed undertaking.
I conclude that in the end, in that, as in any adversarial process where the carriage of the case is for the parties, it will be for the parties to submit whatever evidence or submissions relevant to any issue, including such issue. It will then be for the court to make a decision doing the best it can on the material before it.
Finally it is worth observing that just because something might be difficult for a court does not mean it should be avoided, if in fact it is what the law requires.
Supplementary matters
With the agreement of both parties I have reviewed the documents themselves and the confidential affidavits filed containing the submitted basis for non-disclosure, for the limited purpose of determining whether access should be granted to counsel for the purposes of arguing the appeal. In light of the issues discussed, I am particularly cognisant of the fact that in undertaking such course that information has come from one party and has not to date been disclosed to the other.
It is already apparent from the disclosed information that the documents are further medical reports, created after 2012, from the treating neurosurgeon, provided to SAPOL at their request, concerning the death of Tobias in 2006. The basis asserted for the need for non-disclosure is that their disclosure could reasonably be expected to prejudice the investigation.
Finally, it is noted that in the course of the hearing that while in the early stages of the proceedings counsel for the respondent submitted that as a practical matter counsel for the appellant would not be able to take instructions without implicitly, inadvertently or indirectly disclosing the contents of the confidential material,[4] the respondent later conceded that it did not dispute that in the totality of the circumstances of the present case, it was satisfied that the undertaking given by counsel for the appellant could be relied upon.[5]
[4] Transcript of hearing, 11 July 2017 at page 82.
[5] Transcript of hearing, 6 September 2017 at page 6.
Statutory framework concerning access to the documents in question
Division 2 of Part 5 of the Freedom of Information Act 1991 applied at the relevant time enabling this appeal to this court. Within that division, section 41 addressed the issue of access to documents in such appeal proceedings:
41—Consideration of restricted documents
(1)In any proceedings under this Division in which it is claimed that a     document is a restricted document, the District Court must, on the application of—
(a)     the agency concerned; or
(b)     if the agency concerned is a State Government agency—the Minister                  administering this Act,
receive evidence and hear argument in the absence of the public, the other     party to the appeal and, where in the opinion of the District Court it is         necessary to do so in order to prevent the disclosure of any exempt matter,       the party's representative.
(2)If the District Court is not satisfied, by evidence on affidavit or otherwise,     that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it.
(3)If the agency concerned is a State Government agency, the Minister     administering this Act is a party to the proceedings, and the District Court        must not determine the appeal unless the Court has given the Minister a    reasonable opportunity to appear and be heard in relation to the matter and     has given due weight to any submissions made by or on behalf of the Minister.[6]
[6] The court was informed that the Minister was aware of the matter and did not wish to appear or be heard in the matter, see transcript of hearing 11 July 2017 at page 84.
It is to be observed that once it is claimed that a document is a restricted document, the court must receive evidence and hear argument in the absence of the public and the other party to the appeal. That is mandatory, and common ground between the parties.
What is unclear, or more accurately, is in substantial dispute between the parties, is whether and in what if any circumstances opposing counsel can remain in the courtroom and have access to the evidence and argument.
The respondent argues that where the evidence and argument would disclose any exempt matter, that section 41(1) absolutely prohibits disclosure not only to the public and the applicant but to counsel for the applicant. The respondent argues that where the evidence and argument would reveal exempt matter, that the appellant’s representatives are absolutely required to absent themselves and there is no discretion to allow them to be present. The respondent submits that the section means that counsel for the applicant can only be present if the District Court is of the opinion that the evidence and argument in question would not in itself reveal any exempt matter.[7]
[7] Transcript of hearing 31 July 2017 at page 107.
The applicant argues that whilst on the agency’s application to call evidence and submit argument in the absence of the appellant and the public the section absolutely prohibits the presence of the appellant and the public, it provides a discretion for the appellant’s representative to be present where the court is satisfied that exempt matter will not thereby be disclosed to the appellant and the public.
Analysis of the suggested statutory prohibition on disclosure to the applicant’s counsel
It has long been accepted by the common law that in certain instances the open justice principle and the associated principles of natural justice and procedural fairness may be restricted where to do so is necessary to secure the proper administration of justice.[8] Statutory restrictions will also be valid so long as they are not repugnant to the judicial process.[9]
[8] Hogan v Hinch (2011) 243 CLR 506, per French CJ at 531.
[9] Kable v Director of Public Prosecutions (NSW) 189 CLR 51; Forge v ASIC (2006) 228 CLR 45.
It is trite law to observe that natural justice and procedural fairness lie at the heart of the judicial function,[10] and that statutes that purport to limit or restrict these important principles underpinning the fairness and efficacy of adversarial justice, must be approached carefully and interpreted conservatively and strictly. Further, where constructional choices are open, courts will presume that parliament did not intend to infringe on such important rights and freedoms in the absence of the clearest intention to do so.[11]
[10] International Finance Trust Company Limited and Anor v NSW Crime Commission and Anor (2009) 240 CLR 319, per French CJ at 354
[11] K-Generation Pty Ltd and Anor v Liquor Licensing Court and Anor (2009) 237 CLR 501, per French CJ at 520-521 and Kirby J at 579. See Kirby J at 574-575 as to some of the specific dangers and risks of abuse in allowing evidence and submissions to be withheld from parties; Attorney General (Vic) v The Commonwealth (1945) 71 CLR 237 per Dixon J at 267; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 553; NSW v The Commonwealth (2006) 229 CLR 1 at 161; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, per Mason J at 14.
An initial issue is whether the phrase where in the opinion of the District Court it is necessary to do so in order to prevent disclosure of any exempt matter, the party’s representative is referring to the agency’s representative or the party seeking access’s representative.
There is an element of semantic equivocality about the section as to this issue.
It is also useful to examine how the section might operate under each alternate interpretation.
If the party’s representative were to refer to the agency’s own representative, and hence the agency’s own representative was to be denied access to the agency’s own evidence and arguments, it would be unclear how the agency could actually lead the evidence or make the argument to which the section refers. Further, one might think that the agency could reasonably be assumed to be able to select a representative capable of maintaining its own confidentiality, and so a provision statutorily enabling an agency to tender material confidential from its own representative would seem to be pointless and unnecessary.
On the other hand, it makes more sense that the section in referring to the party’s representative is likely referring to the representative of the party seeking access. The section contemplates the District Court hearing evidence and argument. All the important principles of natural justice that support the fair operation of the adversarial system ordinarily require that evidence and argument occur in the presence of the other party. The section however provides that where the agency or the Minister administering the Act applies to do so, the District Court must receive evidence and hear evidence in the absence of the public and the other party to the appeal. That is drastic but logical, as earlier discussed.
So, in that context, when the section goes on to provide that evidence and arguments be in the absence of the public and the party seeking access and, where in the opinion of the District Court it is necessary to do so in order to prevent the disclosure of any exempt matter, the party's representative, the likely intention from the words and the context, having regard to the important but conflicting principles at stake, is that the section is intending to strike a balance in the following way; to prevent access by the party seeking access’s counsel only where the court is satisfied that it is absolutely necessary to do in light of those conflicting issues. And that circumstance will be where the court is satisfied it is necessary to prohibit counsel’s access to the documents to prevent the disclosure of the exempt matter, and the documents in question may often but I suppose not always contain the exempt matter itself.

Hence, I conclude that the party’s representative in section 41(1) refers to the representative of the party seeking access to the documents in question.
I turn to consider the respondent’s primary argument that the section intends only to provide a discretion for the appellant’s representative to be present where the evidence and argument that the respondent seeks to call pursuant to section 41(1) will not disclose exempt material to the hearing.
The crux of this issue is the meaning of the word disclose. Does it mean disclose to the hearing, or disclose to the appellant or the public? Regrettably, again there is semantic equivocality. If the former, then the respondent’s interpretation is correct. If the latter, the appellant’s.
If it means disclose to the hearing, then why if the evidence and argument at the hearing will not disclose exempt material, are the appellant and the public banned from attendance in any event? Section 41(1) likely bans the attendance of the appellant and the public in anticipation that evidence and argument sought to be led by the agency under section 41(1) will relate to and likely reveal exempt material. If not, there would appear to be little purpose for the exclusion of the appellant and the public.
The meaning disclose to the appellant or the public would seem more logical, in apparently seeking to balance, as earlier discussed, the important yet conflicting principles of preventing the premature revelation of the exempt material to the appellant and the public, yet allowing as much procedural fairness as possible without defeating the purpose of the appeal.
Cognisant of the words themselves, the issues to which the section is most likely directed, and the important principles of construction applicable to statutes which restrict significant rights and freedoms at the heart of the fair exercise of the judicial function earlier referred to, the latter construction is more likely to reflect parliament’s intention.
Accordingly I conclude that section 41(1) of the Freedom of Information Act does not prohibit access by opposing counsel to evidence and argument otherwise tendered confidentially on the appeal pursuant to that section, even where that evidence and argument would reveal an exempt matter, where the District Court is not satisfied that it is necessary to do so in order to prevent the disclosure of any exempt matter.
Whilst it is impossible to predict the circumstances of all cases, a comprehensive undertaking as to confidentiality by counsel will ordinarily be a necessary pre-condition to any finding by a court that further disclosure will be adequately prevented, as absent that undertaking counsel’s duty to their client would require disclosure.
Should access be granted in the case at bar?
In this matter, having considered the issue carefully, taken account of all submissions and cited authorities, taken into account the asserted basis for non-disclosure and the nature of the information and how it may require confidentiality, considered the practitioner concerned including the fact that he is a member of the separate bar and his undertaking, and what is apparent from the materials viewed, I conclude that the Court can adequately rely on the undertaking in this matter to ensure confidentiality.
In the full circumstances of the case, justice and all the competing principles and interests can be properly balanced and reflected by allowing counsel to view the documents and the other confidential material tendered in support of them.
Accordingly I find that, in the words of section 41(1) of the Act, in the opinion of the District Court it is not necessary to receive these materials in the absence of the appellant’s representative (in the form of counsel) in order to prevent the disclosure of any exempt matter.
The claim that the documents are restricted documents brings section 41 into operation, preventing the party and the public from having access to them in any event. Whilst for the purposes of this ruling I have taken the view that on balance cumulatively the documents do to some extent reveal exempt matter, in light of my decision that counsel may have access to them if their tender is pursued, it has been unnecessary to form any final view as to the exact extent to which they reveal exempt matter and whether the documents could or should be redacted to exclude the exempt matter and the remainder provided to counsel.
Conclusions
Section 41(1) of the Freedom of Information Act provides that in any appeal to the District Court in which it is claimed that a document is a restricted document the District Court must on the application of the agency concerned receive evidence and hear argument in the absence of the public and the other party to the appeal.
Where the section goes on to add and, where in the opinion of the District Court it is necessary to do so in order to prevent the disclosure of any exempt matter, the party's representative, that section requires the court to assess whether a similar exclusion of the other party’s counsel is necessary to ensure that exempt matter is not disclosed to the public and the other party to the appeal.
It does not prohibit the presence of opposing counsel where the District Court is not satisfied that it is necessary to do so in order to prevent the disclosure of any exempt matter to the public and counsel’s client.
A comprehensive undertaking as to confidentiality by counsel will ordinarily be a precondition to, but not necessarily determinative of such a conclusion. Such an undertaking has been provided in this matter. The court must then go on to consider the totality of the circumstances.
Having regard to all the circumstances of this case, pursuant to section 41(1) of the Act in the opinion of the District Court it is not necessary to receive the proposed confidential materials in the absence of the appellant’s representative (her counsel) in order to prevent the disclosure of any exempt matter.
Accordingly if the tender of such materials is pressed and they are admitted, counsel for the appellant will have access to them.