Seiffert v Prisoners Review Board [No 3]
[2010] WASC 291
•22 OCTOBER 2010
SEIFFERT -v- PRISONERS REVIEW BOARD [No 3] [2010] WASC 291
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2010] WASC 291 | |
| Case No: | CIV:1872/2010 | 14 SEPTEMBER 2010 | |
| Coram: | MARTIN CJ | 22/10/10 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Order for disclosure of the documents numbered 3, 99, 104, 127, 135 and 138 in the list of documents subject to redaction, but such order be stayed for seven days after publication of these reasons | ||
| A | |||
| PDF Version |
| Parties: | JASON ANDREW SEIFFERT PRISONERS REVIEW BOARD ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Practice and procedure Claim of privilege on grounds of public interest immunity Related matter (Kirby v Prisoners Review Board [No 2] [2010] WASC 280 |
Legislation: | Nil |
Case References: | Kirby v Prisoners Review Board [No 2] [2010] WASC 280 Police Federation of Australia v Nixon [2010] FCA 315 Seiffert v Prisoners Review Board [No 2] 2010 WASC 244 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
PRISONERS REVIEW BOARD
Respondent
ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA
Intervenor
Catchwords:
Practice and procedure - Claim of privilege on grounds of public interest immunity - Related matter (Kirby v Prisoners Review Board [No 2] [2010] WASC 280
Legislation:
Nil
(Page 2)
Result:
Order for disclosure of the documents numbered 3, 99, 104, 127, 135 and 138 in the list of documents subject to redaction, but such order be stayed for seven days after publication of these reasons
Category: A
Representation:
Counsel:
Applicant : Dr J T Schoombee
Respondent : No appearance
Intervenor : Mr G T W Tannin SC & Ms S J Keighery
Solicitors:
Applicant : Thames Legal
Respondent : No appearance
Intervenor : State Solicitor's Office
Case(s) referred to in judgment(s):
Kirby v Prisoners Review Board [No 2] [2010] WASC 280
Police Federation of Australia v Nixon [2010] FCA 315
Seiffert v Prisoners Review Board [No 2] 2010 WASC 244
(Page 3)
1 MARTIN CJ: In these proceedings, Jason Andrew Seiffert seeks to quash the decision made by the respondent, the Prisoners Review Board (the Board) to cancel his parole. The Board has filed a submitting appearance and is not taking any active part in the proceedings. The Attorney General for Western Australia has intervened.
2 These proceedings have been managed by me contemporaneously with similar proceedings commenced by Lennard Mark Kirby (CIV 1910 of 2010) and Michael Lance Littlefair (CIV 1912 of 2010). Although the factual circumstances of those other cases are quite different to that of Mr Seiffert's, similar legal issues are raised in all three cases.
3 As in those other cases, for reasons which it is not necessary to repeat, I ordered the Board to produce to the court documents within its possession falling within a certain description, in order that the court could ascertain which of those documents were sufficiently relevant to justify disclosure to Mr Seiffert's legal advisers. The Board produced the documents within the class specified, together with a list of the documents produced to the court. After reviewing the documents, I ordered that one of them be disclosed to Mr Seiffert's legal advisers, and later to Mr Seiffert (see Seiffert v Prisoners Review Board [No 2] 2010 WASC 244).
4 However, in respect of some of the documents produced, the Attorney General foreshadowed a claim for public interest immunity from inspection. I did not consider those documents at the time I reviewed the documents provided by the Board for the purposes of identifying those which should be disclosed to Mr Seiffert's legal advisers. Instead, I specified a process whereby Mr Seiffert was required to specify the documents in respect of which he challenged the claim for public interest immunity. That has occurred. An affidavit has been filed in support of a claim for public interest immunity, and the parties have exchanged written and oral submissions on the topic. These are my reasons for determining the claims for public interest immunity.
5 The legal principles which I have applied to the determination of the claim for public interest immunity in this case are those which I have set out in my reasons for decision in the matter of Kirby, which I publish contemporaneously with these reasons. That part of those reasons can be taken to be incorporated by reference into these reasons.
(Page 4)
The nature of these proceedings
6 In the reasons which I gave for my earlier decision to permit inspection of a document produced to the court by the Board (Seiffert v Prisoners ReviewBoard [No 2]), I outlined the nature of these proceedings and referred briefly to the issues arising from the grounds specified in the originating motion. It is unnecessary to repeat that summary, which I incorporate into these reasons by reference.
The affidavit
7 As in the other two cases to which I have referred, the Attorney General relies upon the affidavit of Sharon-Lee Holland in support of the claim for public interest immunity. The affidavit of Ms Holland suffers from the same inadequacies which I identified in those other two cases, and the reasons I have given in that respect in Kirby v Prisoners Review Board [No 2] [2010] WASC 280 should be taken to be incorporated by reference into these reasons.
8 I turn now to consider the specific categories of documents in respect of which immunity has been claimed, and in respect of which the claim is contested. The first relevant category of documents is described by Ms Holland in her affidavit as 'statutory reports and briefing notes to the minister'.
9 The text of the affidavit refers to the Board's statutory responsibility to provide written reports to the responsible minister. The essence of the claim for public interest immunity is set out in the following paragraph from Ms Holland's affidavit:
14. The Attorney General objects to producing the documents enumerated below on the grounds that they are confidential reports and briefings from the respondent to the minister. If these documents were publicly disclosed, that would disclose the material that it would not be appropriate to disclose to a prisoner. Indeed a report may contain a copy of a victim's submission and there may be statutory impediment to provide that under s 5C(5) of the Sentencing Administration Act 2003 (WA). Also the public disclosure of the reports would be likely to affect the candour with which the Chairperson of the respondent would feel comfortable providing written advice to the Attorney General in the future. The disclosure of these reports would effectively prevent the Board from discharging their statutory functions to provide comprehensive, complete and detailed reports to the Minister. It is therefore likely that, if the contents of confidential reports and briefing notes were disclosed, the respondent could not be as frank
- or candid in future reports and briefings to the Minister as it might otherwise be. For these reasons, the disclosure of those documents is therefore against the public interest.
10 It can therefore be seen that the basis of the claim for immunity in respect of these documents is what the authorities would describe as a 'class claim' based on the public interest in candour and confidentiality. The principles to which I have referred in Kirby v Prisoners Review Board [No 2] support the conclusion that a claim cast at that level of generality, on those grounds should not be upheld. I have therefore considered the contents of the documents in respect of which the claim is made in order to assess whether they are capable of augmenting the basis for the claim enunciated in the affidavit. There is nothing in those documents that would support the conclusion that the nature of the communication itself, being a communication between the Board and the Attorney General, sustains the claim for public interest immunity. However, there is a portion of one of those documents which contains information provided by an informant, the nature of which leads me to conclude that it was provided in confidence and the disclosure of which would be contrary to the public interest. I therefore uphold the claim for immunity in respect of that portion of the document which can be redacted accordingly (see Police Federation of Australia v Nixon [2010] FCA 315 at [26]) The information contained in this portion of the document is irrelevant to the grounds of review, and therefore the public interest against disclosure prevails over any public interest in the resolution of the issues in these proceedings which might justify provision of an unredacted version of the document. Accordingly, I have concluded that the claim for public interest immunity in respect of the two documents has not been made out on the basis upon which the claim was asserted, subject to the redaction referred to above.
11 It is therefore necessary for me to assess whether the documents are sufficiently relevant to the issues in the case to justify disclosure. The first of the two documents in question precedes the grant of parole to Mr Seiffert, and is essentially irrelevant to any of the contentious factual issues in these proceedings.
12 However, the second contested document makes reference to the reasons for the revocation of Mr Seiffert's parole, including issues that are factually contentious, and is sufficiently relevant to the issues to justify disclosure. That is document number 104, being the copy of a briefing from the chairperson of the Board to the Attorney General. Accordingly,
(Page 6)
- I will direct disclosure of that document subject to the redaction to which I have referred.
13 The next category of documents the subject of the claim for public interest immunity is the category described as 'highly sensitive and confidential prison and parole documents'. The text of the affidavit relied upon to support that claim is identical to the text which I have set out in Kirby v Prisoners Review Board [No 2], and suffers the same deficiencies. For the reasons I expressed in that matter, it is therefore necessary for me to go to the documents themselves in order to ascertain whether there is any basis for the immunity claimed.
14 There is nothing in the documents that would suggest, of themselves, that they fall within a class such that disclosure would cause sufficient prejudice to the public interest to justify a claim for public interest immunity. However, as with document 104, there are portions of documents 3, 127, 135 and 138 which contain confidential information, apparently supplied by an informant, which it would be contrary to the public interest to disclose, and which is irrelevant to any issue raised by the grounds of review. Accordingly, if the balance of those documents is otherwise relevant, disclosure should be provided on a redacted basis.
15 I turn therefore to assess whether the documents in respect of which the claim for immunity is contested are sufficiently relevant to the issues in the case to justify disclosure. It will be seen from my earlier description of the issues in this matter (Seiffert v Prisoners Review Board [No 2] [6]), that, to the extent that there are issues personal to Mr Seiffert in these proceedings, they concern the issue that he has raised in respect of his participation in the programmes conducted by Relationships Australia. There are five documents in the contentious category which contain information relevant to that issue, being documents 3, 99, 127, 135 and 138. In my view, those documents may be relevant to the issues in this case, and it is therefore appropriate to order their disclosure subject to the redaction referred to above. There is nothing in the other documents within this class that appears to me to be relevant to any of the contentious issues in these proceedings, and indeed, many of them pre-date the grant of parole to Mr Seiffert, and are therefore irrelevant to the issue of the revocation of parole.
16 For these reasons, I reject the claim for public interest immunity where that claim has been contested by Mr Seiffert other than in respect of those portions which should be redacted prior to disclosure, for the reasons I have given. The documents numbered 3, 99, 104, 127, 135 and
(Page 7)
- 138 are, in my view, sufficiently relevant to the contentious issues in these proceedings to justify their disclosure, and I will direct accordingly, subject to the redaction referred to above. However, as requested by the Attorney General, I will defer the operation of that direction for seven days after publication of these reasons, to allow the Attorney General time within which to initiate proceedings by way of appeal against this decision, should he wish to do so. Disclosure will be limited in the first instance to solicitors and counsel acting on behalf of Mr Seiffert, on the terms of the undertaking as to confidentiality which they have already given. I will, however, invite the Attorney General to advise the court in due course whether there is any objection to disclosure of that document to Mr Seiffert himself.
0
2
1