State of New South Wales v Public Transport Ticketing Corporation (No 3)

[2011] NSWCA 200

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Public Transport Ticketing Corporation (No 3) [2011] NSWCA 200

Hearing dates:

On the papers

Decision date:

22 July 2011

Before:

Allsop P at 1
Hodgson JA at 41
Sackville AJA at 42

Decision:

Orders:

1. The following documents be disclosed:

(a) Paras 4.1, 4.2, 4.3, 4.6 and 4.8 in document D1.

(b) Paras 5.1-5.3, together with headings, in Item 5 in documents D2-D4.

(c) Paras 3.1-3.7 of Item 3 in documents D5-D6.

2. The Court, through the Registrar of the Court of Appeal, request the Attorney-General to nominate counsel considered appropriate to act as special counsel in the proceedings in order that the issue of public interest immunity be resolved as expeditiously as possible.

3. If the Attorney-General fails to nominate such a counsel or if the State of New South Wales ("State") and the Second and Third Respondents cannot agree on the person so nominated, the appointment will be made, after hearing the parties, by the President of the Court of Appeal.

4. The special counsel receive instructions from the Second and Third Respondents prior to inspecting the confidential documents. Once the confidential material has been provided to and inspected by special counsel, he or she receive no further instructions from the Second or Third Respondents, without the prior agreement of the solicitors for the State.

5. The special counsel not disclose to the Second or Third Respondents or their legal representatives or to any person other than the Court and the State and its legal representatives the contents of the confidential documents.

6. The special counsel make submissions to the Court in respect of the claim for public interest immunity, in accordance with the directions of the Court and in the absence of the Second and Third Respondents or in a manner and form as maintain the confidentiality of the documents.

7. Following the determination of the State's public interest immunity claim, the special counsel take no further part in the proceedings.

8. The fees for the special counsel be paid, in the first instance, by the Second and Third Respondents and such costs be reserved to the bench hearing the public interest immunity claim.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - interlocutory decision - discovery - public interest immunity - whether Court should reconsider decision of application of immunity to category of documents in light of amended pleadings.

PROCEDURE - discovery - public interest immunity - whether appropriate to appoint a special counsel - considerations of fairness, justice and efficiency - duty upon Court under Civil Procedure Act 2005 (NSW), s 56(2) to consider techniques and procedures to give effect to the overriding purpose of the Civil Procedure Act, s 56(1).

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56-61, 56(1), 56(2)
Special Immigration Appeals Commission Act 1997 (UK), s 6(1)
Supreme Court Act 1970 (NSW), s 23

Cases Cited:

A v HM Treasury [2008] EWCA Civ 1187; [2009] 3 WLR 25
Al Rawi v The Security Service [2011] UKSC 34
Chahal v UK (1996) 23 EHHR 413
Commissioner of Police v Sleiman & AVS Group of Companies [2011] NSWCA 21
Dietrich v The Queen [1992] HCA 57; 177 CLR 292
Hamilton v Oades [1989] HCA 21; 166 CLR 486
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319
Jackson v Sterling Industries Ltd [1987] HCA 23; 162 CLR 612
Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23
Levy v Victoria [1997] HCA 31; 189 CLR 579
M v Secretary of State for the Home Department [2004] EWCA Civ 324; [2004] 2 All ER 863
Murungaru v Secretary of State for the Home Department [2008] EWCA Civ 1015
R v H; R v C [2004] UKHL 3; [2004] 2 AC 134
R v Lodhi [2006] NSWSC 586; 163 A Crim R 475
R (AHK) v Secretary of State for the Home Department [2009] EWCA Civ 287; [2009] 1 WLR 2049
R (Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin); [2008] 4 All ER 403
R (Roberts) v Parole Board [2005] UKHL 45; [2005] 2 AC 738
Reid v Howard [1995] HCA 40; 184 CLR 1
Secretary of State for the Home Department v Rehman [2003] 1 AC 153
Tringali v Stewardson Stubbs & Collett Pty Ltd (1966) 66 SR (NSW) 335
United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520
Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471
Wurridjal v The Commonwealth [2009] HCA 2; 237 CLR 309

Texts Cited:

M S Dockray "The Inherent Jurisdiction to Regulate Civil Proceedings" (1987) 113 Law Quarterly Review 120
K Mason AC "The Inherent Jurisdiction of the Court" (1983) 57 Australian Law Journal 449

Category:

Principal judgment

Parties:

State of New South Wales (Appellant/First Cross Respondent)
Public Transport Ticketing Corporation ACN 57 443 320 873 (First Respondent/Second Cross Respondent)
Integrated Transit Solutions Limited ACN 19 085 661 865 (Second Respondent/First Cross Claimant)
ERG Limited ABN 23 009 112 725 (Third Respondent/Second Cross Claimant)

Representation:

Mr R Lancaster SC, Ms C Spruce (Appellant)
Mr S Free (First Respondent)
Mr W G Muddle SC, Mr J A Arnott (Second & Third Respondents)
Crown Solicitor's Office (Appellant)
Allens Arthur Robinson (First Respondent/Second Cross Respondent)
Norton Rose (Second & Third Respondents/First & Second Cross Claimants)

File Number(s):

2008/290313

 Decision under appeal 

Jurisdiction:

9111

Citation:

Public Transport Ticketing Corporation v Integrated Transit Solutions & Anor [2010] NSWSC 607

Date of Decision:

2010-06-08 00:00:00

Before:

Einstein J

File Number(s):

2008/290313

Judgment

1. ALLSOP P: On 23 March 2011, the Court made orders dealing with aspects of public interest immunity claims by the State of New South Wales in proceedings in the Commercial List before Einstein J (see [2011] NSWCA 60). The Court clarified one aspect of those reasons on 7 July 2011 ([2011] NSWCA 185). Two further matters have been put forward by the parties for resolution: first, a reconsideration of category D documents (see first judgment [2011] NSWCA 60 at [60]-[73]) in the light of amendments made by Integrated Transit Solutions Limited and ERG Limited (to whom I will again refer in the singular as "ERG"); and, secondly, the question of the appointment of a special counsel to assist the Court in advancing argument to the Court in respect of the balance of the documents, in effect, as an independent contradictor to the State. The State and ERG have filed written submissions in respect of these matters. The Public Transport Ticketing Corporation (the "PTTC") continues not to take an active part in the appeal. The parties have agreed to the Court dealing with these matters on the papers.

Reconsideration of category D

1. The application to reconsider the category D documents was, in effect, an application to re-open. The State did not oppose the reconsideration. That was the proper course. The interests of justice are, in the circumstances, served by a reconsideration: Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 at 478, per Clarke JA, Mahoney JA and Meagher JA agreeing.

1. I will not repeat anything in the first judgment.

1. ERG now alleges in its Amended Commercial List Response (the "ACLR") that Cabinet, not the board of the PTTC, made the decision to issue each of the relevant notices. This is said by ERG to be a breach of contract by allowing another party (the State) to exercise the relevant contractual power. It is further alleged that Cabinet acted wrongfully in taking irrelevant matters into account, did not act reasonably and in good faith, and acted for an extraneous purpose.

1. It was submitted that the category D documents are critically relevant to these issues. A body of conduct in relation to termination is set out in paras 110-186 of the ACLR. It is unnecessary to set this out in detail here. It includes allegations that the contract was terminated, in part, for reasons of political expediency unconnected with the performance of the contract by ERG.

1. The fact that the position of Cabinet has been raised by ERG (and not the PTTC) is not irrelevant. Nevertheless, a genuine dispute now concerns the very acts of Cabinet to which these documents relate. These acts and the reasons for them now lie at the centre of the resolution of a commercial dispute. The parts of the documents to which I referred in [71]-[73] of the first judgment are now directly relevant to the dispute. Further, they have no contemporaneity; they concern a commercial relationship entered into by an instrumentality of the State; and, they do not concern any current question of policy. The centrality of relevance now supplies, in my view, the sufficient degree of exceptionality to require disclosure of the relevant parts of the documents. This is reinforced when one takes into account the conclusions to which I came about the Cabinet Minutes and like documents in category E.

1. I would order the disclosure of:

(a) Paras 4.1, 4.2, 4.3, 4.6 and 4.8 in document D1.

(b) Paras 5.1-5.3, together with headings, in Item 5 in documents D2-D4.

(c) Paras 3.1-3.7 of Item 3 in documents D5-D6.

The appointment of special counsel

1. ERG requests that the Court appoint a "special counsel", chosen and paid for by it, but independent of it in relevant respects, to assist in the resolution of the remaining claims for public interest immunity by the State. The counsel would be under an obligation of confidence not to say or do anything that might tend to disclose to ERG the contents of the documents and parts thereof over which a public interest immunity claim is made.

1. The precise focus of the relevant question might be seen to be an order to the State to disclose documents to a third party in circumstances where there is an unresolved claim for public interest immunity. This aspect of the matter need not be separately dealt with given the State's attitude to the first condition referred to in the next paragraph.

1. There is no express statutory foundation for the exercise of such power. However, the State did not contest that the Court has an inherent power to make orders for the appointment of special counsel in civil proceedings to assist the Court in the resolution of a claim for public interest immunity should two conditions be satisfied. The first condition is that such disclosure for the said limited purpose not be injurious to the public interest. The second condition is that there exist exceptional circumstances requiring some departure from the usual approach to the resolution of public interest immunity claims.

1. The State accepts "for the purposes of this application", that the first condition is satisfied; but submits that the second is not.

1. Notwithstanding the lack of contest by the State as to the first condition, it is necessary for this Court to be satisfied as to the existence and source of its authority in such a case as this. This is so not least because an appreciation of those matters illuminates the proper exercise of the power.

1. The notion of the inherent jurisdiction of this Court as a superior court of record established under the Third Charter of Justice with responsibility for the administration of justice is a broad one. It is not restricted to defined and closed categories: K Mason AC "The Inherent Jurisdiction of the Court" (1983) 57 Australian Law Journal 449; M S Dockray "The Inherent Jurisdiction to Regulate Civil Proceedings" (1987) 113 Law Quarterly Review 120; Tringali v Stewardson Stubbs & Collett Pty Ltd (1966) 66 SR (NSW) 335 at 344; Jackson v Sterling Industries Ltd [1987] HCA 23; 162 CLR 612 at 639; Hamilton v Oades [1989] HCA 21; 166 CLR 486 at 502; Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23 at 25-26; Dietrich v The Queen [1992] HCA 57; 177 CLR 292 at 364; Reid v Howard [1995] HCA 40; 184 CLR 1 at 16.

1. The terms of the Supreme Court Act 1970 (NSW), s 23 are likewise broad and general.

1. The inherent power subsumes the power that all courts can be seen to have: that which is incidental (or implied) to carry out their functions and to control their own processes.

1. The breadth of the inherent jurisdiction giving rise to legitimate judicial authority or power does not extend to the abrogation of fundamental common law rights, such as the privilege against self incrimination: Reid v Howard , or, here, public interest immunity.

1. A central concern in the administration of justice is fairness. It is part of the essence of the judicial function and informs the necessary character of courts - how they act and what must exist for them to be properly so described as courts: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319. Related to, and bound up with, fairness are the procedural benefits of the convenient and expeditious conduct of legal proceedings. Fairness, justice, expedition, efficiency and access to justice at a reasonable cost are, or should be, inter-related, but distinct, features of dispute resolution in civil society. Parliament has recognised this inter-relationship in the Civil Procedure Act 2005 (NSW), ss 56-61, and in particular the overriding purpose provided for in s 56(1): the facilitation of the "just, quick and cheap resolution of the real issues in dispute or proceedings", which the Court has an obligation to seek to give effect to: Civil Procedure Act , s 56(2).

1. Thus, the formulation of techniques and procedures that will enhance speed, or efficiency, or fairness in the resolution of civil disputes must clearly be within the power of the Court; and, indeed, are necessary for the Court to consider in compliance with s 56(2). Novelty is no bar to such power or duty. The trammelling of fundamental common law rights or statutory rights is.

1. There are a number of circumstances in which the courts have been faced with a handicap or a difficulty in efficiently or justly resolving an aspect of a dispute where one party cannot see the material upon, or in respect of which, the court must adjudicate. Fairness may be compromised because the nature of the right or privilege asserted or claimed is one that excludes the other party from an examination of relevant material, but to disclose it to the other party for the purpose of resolving the claim of right would destroy that very right (if legitimately claimed). Further, fairness may be compromised by the court examining the material without a contradictor. This is, in part, alleviated by the recognition that the hearing without the substantive participation of the other party will have features of an ex parte application, thereby requiring appropriate disclosure from the party claiming the right. Nevertheless, it is easily seen how the other party may feel less than fully satisfied with the decision of the court, the foundation of which it cannot know or understand. Further, efficiency, to a degree, is impeded. A court, without a contradictor, must seek to understand the litigious context of the claim of right and assess it with only one side assisting. Here, the time of three judges on appeal was taken examining material without the assistance of a contradictor.

1. The promotion of fairness and expedition in the resolution of proceedings may be seen to justify the court, in a proper case and without the destruction or affectation of the right concerned, making a properly fashioned order for the employment of a special counsel to make submissions in relation to documents or information to which the other party is not privy. The circumstances of what is a proper case and the fashioning of the order to avoid any deleterious affectation of the claimed right will be particular to each case. It will be important, in the fashioning of such orders, to retain a focus upon substance, not form or labels. Thus, what I have said by way of general approach could extend to the appointment of an amicus curiae or assessor who could be seen as acting on behalf of, and assisting, the court in a manner that would support the conclusion that the right to non-publication beyond the court's necessary examination of the documents had not been affected or breached. (See generally Levy v Victoria [1997] HCA 31; 189 CLR 579 at 604; United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 at 535; Wurridjal v The Commonwealth [2009] HCA 2; 237 CLR 309 at 312; and Commissioner of Police v Sleiman & AVS Group of Companies [2011] NSWCA 21 at [183]-[185].)

1. The above suggested broad approach is to be evaluated by reference to existing authority: Secretary of State for the Home Department v Rehman [2003] 1 AC 153; M v Secretary of State for the Home Department [2004] EWCA Civ 324; [2004] 2 All ER 863; R v H; R v C [2004] UKHL 3; [2004] 2 AC 134; R (Roberts) v Parole Board [2005] UKHL 45; [2005] 2 AC 738; R (Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin); [2008] 4 All ER 403; Murungaru v Secretary of State for the Home Department [2008] EWCA Civ 1015; A v HM Treasury [2008] EWCA Civ 1187; [2009] 3 WLR 25; R (AHK) v Secretary of State for the Home Department [2009] EWCA Civ 287; [2009] 1 WLR 2049; R v Lodhi [2006] NSWSC 586; 163 A Crim R 475; and Commissioner of Police v Sleiman & AVS Group of Companies [2011] NSWCA 21.

1. Secretary of State for the Home Department v Rehman [2003] 1 AC 153 was an immigration case in which Mr Rehman sought to remain in the United Kingdom. The use of special counsel concerned information said to relate to the Secretary of State's concern that Mr Rehman had links with terrorist organisations in Pakistan. Submissions were made to the Court of Appeal in the absence of Mr Rehman by a special counsel appointed by the Court without express statutory foundation. Lord Woolf MR on behalf of the Court (his Lordship, Laws LJ and Harrison J) said the following at 164-165 [31] about the proceeding:

" ... The 1997 Act makes no provision for a special advocate on an appeal. However, it seemed to us that, if it was necessary for the court in order to dispose justly of the appeal to hear submissions in the absence of Mr Rehman and his counsel, under the inherent jurisdiction of the court, counsel instructed by the Treasury Solicitor, with the agreement of the Attorney General, would be able to perform a similar role to a special advocate without the advantage of statutory backing for this being done. A court will only hear submissions on a substantive appeal in the absence of a party in the most extreme circumstances. However, considerations of national security can create situations where this is necessary. If this happens, the court should use its inherent power to reduce the risk of prejudice to the absent party so far as possible..."

What was exceptional was the exclusion of the party from the hearing of submissions. No doubt the utility of the submissions effectively required that to be done. It will not always be the case. What moved the Court, however, was an evaluation of the need for the assistance in order to dispose of the appeal justly, or at least to reduce the risk of prejudice.

1. M v Secretary of State for the Home Department [2004] EWCA Civ 324; [2004] 2 All ER 863 was also an immigration case involving a suspicion that the applicant was a terrorist. Section 6(1) of the Special Immigration Appeals Commission Act 1997 (UK) provided for the appointment by a law officer of someone to represent the interests of an appellant in proceedings before the Special Immigration Appeals Commission from which the appellant and his or her advisers were excluded. On appeal to the Court of Appeal once again two special advocates were appointed (senior and junior counsel). This course was taken for the reasons set out at 868 [13] - to avoid, or at least minimise, unfairness.

1. R v H; R v C [2004] UKHL 3; [2004] 2 AC 134 was a criminal case involving public interest immunity. The defendants were charged with conspiracy to supply drugs. At a preliminary hearing, the Crown sought a ruling as to its entitlement to withhold material from the accused on the ground of public interest immunity. The House of Lords agreed with the Court of Appeal that the primary judge's ruling to appoint a special advocate had been premature. Lord Bingham of Cornhill, in delivering the opinion of the Appeal Committee (his Lordship, Lord Woolf CJ, Lord Hope of Craighead, Lord Walker of Gestingthorpe and Lord Carswell), discussed the requirement for, and contents of, fairness in the criminal trial process. Within that context, Lord Bingham discussed the special advocate procedure that had grown up in immigration cases involving aspects of national security. His Lordship at 150-151 [22] and 155 [36] identified the problems of such a procedure, but recognised that if the need were shown the course should be adopted as a last resort:

"[22] ... novelty is not of itself an objection, and cases will arise in which the appointment of an approved advocate as special counsel is necessary, in the interests of justice, to secure protection of a criminal defendant's right to a fair trial. Such an appointment does however raise ethical problems, since a lawyer who cannot take full instructions from his client, nor report to his client, who is not responsible to his client and whose relationship with the client lacks the quality of confidence inherent in any ordinary lawyer-client relationship, is acting in a way hitherto unknown to the legal profession. While not insuperable, these problems should not be ignored, since neither the defendant nor the public will be fully aware of what is being done. The appointment is also likely to cause practical problems: of delay, while the special counsel familiarises himself with the detail of what is likely to be a complex case; of expense, since the introduction of an additional, high-quality advocate must add significantly to the cost of the case; and of continuing review, since it will not be easy for a special counsel to assist the court in its continuing duty to review disclosure, unless the special counsel is present throughout or is instructed from time to time when need arises. Defendants facing serious charges frequently have little inclination to co-operate in a process likely to culminate in their conviction, and any new procedure can offer opportunities capable of exploitation to obstruct and delay. None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it. But the need must be shown. Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant.

...

[36] ... In appropriate cases the appointment of special counsel may be a necessary step to ensure that the contentions of the prosecution are tested and the interests of the defendant protected (see paragraph 22 above). In cases of exceptional difficulty the court may require the appointment of special counsel..."

1. The significant caution and the use of the procedure as a last resort can be seen to rest on the clear dangers expressed by Lord Bingham concerning the criminal trial process.

1. R (Roberts) v Parole Board [2005] UKHL 45; [2005] 2 AC 738 concerned a life sentence prisoner who became eligible for release on licence. The Board received information from the Home Secretary based on an informant's disclosure. The Board decided (based on risk to the informer should disclosure be made to the prisoner) to appoint a special advocate. The prisoner complained that the procedure violated his rights under Art 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms scheduled to the Human Rights Act 1998 (UK) dealing with due process to "take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful". The Board was under a duty of procedural fairness. Lord Woolf CJ at 775-777 [57]-[63] and Lord Rodger of Earlsferry at 791 [107]-[108] discussed the use of special advocates in ameliorating the prejudice to the person the subject of the necessarily secret material. The amelioration of unfairness was at the foundation of the Board's power to provide for the process. Lord Carswell also supported the use of the procedure, but said that the procedure should be used only in rare and exceptional cases as a last and never first resort: at 803 [144].

1. R (Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin); [2008] 4 All ER 403 concerned the production of information by a journalist pursuant to an order for production requested by the chief constable. A hearing took place partly in the presence, and partly in the absence, of the journalist. No special advocate was sought or appointed in relation to the closed hearing. Dyson LJ (as his Lordship then was), on behalf of the Court, discussed the use of the special advocate procedure. At 428 [98], Dyson LJ, whilst recognising that R v H was a criminal case, said:

"[98] ... we doubt whether the court should be more willing to request the appointment of a special advocate in other contexts. In Roberts 's case , (not in the context of a criminal trial), it is to be noted that Lord Carswell said at [144] that the special advocate procedure should be used only in 'rare and exceptional cases' and as a course of last and never first resort. And Lord Woolf CJ said at [42] that what Lord Bingham said in R v H ' could be even more apposite in the case of the [parole] board'."

1. Murungaru v Secretary of State for the Home Department [2008] EWCA Civ 1015 was an immigration case in which public interest immunity had been claimed by the Home Secretary in relation to certain material. A special advocate procedure was ordered by a judge to assist with dealing with the restricted material. On appeal, Sedley LJ noted (at [15]) that the special advocate procedure had developed in the wake of the decision of the European Court of Human Rights in Chahal v UK (1996) 23 EHRR 413 that in order to satisfy the due process guarantee in Art 5(4) in national security cases there were techniques that could be used to give an individual a substantial measure of procedural justice whilst accommodating security concerns. After discussing the procedure generally, his Lordship said at [20]:

"Although they do not arise directly in the present case, there are some larger principles which need to be borne in mind by courts. The help of a special advocate is to be sought if, but only if, the interests of justice require it: it is a last resort if all other means of doing justice fail (see Lord Bingham in R v H [2004] 2 AC 134 22). Even disclosure of evidence is not a universal right (see Lady Hale in Home Secretary v MB [2008] AC 440 58ff). The availability of a special advocate can never be a reason for reducing the procedural protections which the law otherwise guarantees (see Lord Woolf in Roberts v Parole Board 59). These, whether under art. 6 or at common law, may vary with the gravity of the potential consequences of the proceedings (see Lord Bingham in Home Secretary v MB 24)."

Part of his Lordship's caution in the use of the procedure was based on the recognition that the over-use of the procedure in the context with which he was dealing might undermine the rights of a party to see material in cases where secrecy was not warranted.

1. In R (AHK) v Secretary of State for the Home Department [2009] EWCA Civ 287; [2009] 1 WLR 2049, the Court of Appeal (Sir Anthony Clarke MR, as his Lordship then was, Jacob LJ and Kay LJ) examined the relevant principles in the context of judicial review proceedings concerning the refusal of an application for British citizenship. In discussing the appropriate approach in this context, their Lordships said (at 2063 [37]) that a special advocate should be appointed:

" ... where it is just, and therefore necessary, to do so in order for the issues to be determined fairly. ... The appointment of a special advocate is, for example, likely to be just where there may be significant issues and/or a significant number of documents. The position may be different where there are very few documents and the judge can readily resolve the issues simply by reading them. ... All depends upon the circumstances of the particular case, but it is important to have in mind the importance of the decision from the claimant's point of view, the difficulties facing the claimant in effectively challenging the case against him in open court and whether the assistance of a special advocate will or might assist the claimant in meeting the Secretary of State's case and the court in arriving at a fair conclusion."

The Court was directing its comments to certain types of cases; but it is important to appreciate that the Court did not begin (or end) with a statement as to the exceptional rarity of the use of the power. Its use was to be assessed, in all the circumstances, based on the fairness and justice of the occasion.

1. In Australia, Whealy J (as his Honour then was) looked at the question in R v Lodhi [2006] NSWSC 586; 163 A Crim R 475. In the context of a criminal trial of terrorism offences, Whealy J concluded that the Court had power to appoint a special counsel to assist the Court in dealing with material concerning national security to which public interest immunity attached; but his Honour said the Court should do so only if it were satisfied that no other course would adequately meet the overriding requirement of fairness to the accused: see especially at 486 [45].

1. In Commissioner of Police v Sleiman & AVS Group of Companies [2011] NSWCA 21 this Court (Sackville AJA at [169]-[195], with whose reasons Handley AJA and I agreed) examined the utilisation in the context of the Security Industry Act 1997 (NSW) of the appointment of a special advocate. It was held that the Administrative Decisions Tribunal (the "ADT") could not under the relevant legislation appoint a special counsel who would be "the applicant's representative" because a relevant provision of the Act forbade disclosure to a person who answered that description. Nevertheless, it was held that the ADT could appoint counsel to perform functions analogous to those of an amicus curiae . At [183]-[185] and [188]-[189] Sackville AJA discussed the role of such counsel:

"[183] ... the ADT's powers include, in my opinion, appointing a legal practitioner to perform functions analogous to those performed by an amicus curiae in court proceedings.

[184] A court may permit an amicus curiae to make submissions on law or fact: Levy v Victoria [1997] HCA 31; 189 CLR 579, at 604, per Brennan CJ. The court takes into account whether the party whose cause the amicus seeks to support is unable or unwilling to protect his or her own interests, or is unable to assist the court in arriving at the correct determination: Kruger v Commonwealth, transcript of 12 February 1996, at 12 cited by Brennan CJ in Levy v Victoria , at 604. For example, an amicus curiae may be permitted to make submissions on behalf of an infant or other disadvantaged person whose interests might not otherwise be protected: United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520, at 535, per curiam .

[185] In Wurridjal v The Commonwealth [2009] HCA 2; 237 CLR 309, the High Court emphasised the role of an amicus curiae in assisting the Court to take a " larger view of the matter before it than the parties are able or willing to offer ": at 312, per French CJ (for the majority) (emphasis added). The functions of the ADT are, of course, different from those of the High Court. But the ADT may need greater assistance in a particular case than the parties are able or willing (for whatever reason) to provide.

...

[188] In my opinion, s 73(2) of the [ Administrative Decisions Tribunal Act 1997 (NSW)] provides ample power for the ADT to appoint counsel to assist it in evaluating Criminal Intelligence relied on by the Commissioner in review proceedings. Counsel's role can include (but would not necessarily be limited to) making submissions in relation to the cogency and reliability of the Criminal Intelligence. Counsel's submissions could include arguments of the kind that the review applicant might have been expected to put if he or she had been made aware of the existence and content of the Criminal Intelligence.

[189] In referring to counsel assisting, I have in mind someone neither selected nor appointed by the review applicant. Such a counsel, unlike the proposed special advocate, would not be retained or instructed by the review applicant and, of course, would not communicate with the review applicant during the hearing (since to do so would disclose the Criminal Intelligence). In this manner, the ADT could cause itself to be informed so as to minimise the procedural unfairness flowing from the secrecy attending the Criminal Intelligence."

1. None of the above cases fell to be decided in the context of the Civil Procedure Act . The framework and content of the Civil Procedure Act and, in particular for present purposes, s 56(2), require the Court to adjust its procedures to facilitate not only fairness and justice but also efficiency and speed. Ultimately, the question is one of balance and judgment. Has a need been demonstrated in the interests of fairness or justice or efficiency or economy in the conduct of litigation for the fashioning of an order for the appointment of counsel, as a detached special counsel pursuing or taking into account the interests of the party or as an amicus curiae to assist the Court to ensure all points are put to the Court or to ensure the Court obtains all necessary assistance of a contradictor? No doubt criminal cases and cases involving questions of national security throw up particular difficulties, not the least of which are ethical questions.

1. Nevertheless, none of the above cases pursuades me that the broad and general approach in furtherance of the overriding purpose of the Civil Procedure Act should not be adopted. Indeed the approach of Sir Anthony Clarke MR and Jacob LJ and Kay LJ in R (AHK) supports such a general approach. Caution is, of course, necessary - in particular in not trammelling upon substantive rights, in not unnecessarily increasing costs and in not avoiding the necessary duty of adjudication placed on the Court. That said, the resolution of claims for immunities and privileges - especially in complex commercial cases can often throw a significant burden of time on the Court that could be alleviated or ameliorated by assistance from a contradictor, fashioned by an appropriate order.

1. With the above approach in mind, I would make an order for the appointment of a special counsel here. The circusmtances that make this appropriate are as follows. First, given the large number of documents remaining to be dealt with, the active participation of a counsel made familiar with the issues in the commercial cause and who can, with the interests of ERG in mind, responsibly put submissions to this Court on any application will almost certainly reduce the time to be taken by this Court in dealing with the matter. Secondly, this process will tend to enhance the fairness and apparent fairness of the procedure to ERG. Thirdly, it is not put that there is any risk to the public interest, and thus to the value of the immunity, in following this course. Fourthly, the costs are agreed to be borne by ERG, at least in the first instance. Fifthly, whilst the Court has now dealt with the application of principle to some of the documents, that factor weighs in favour of, not against, use of the procedure, as the reasons of this Court in the first judgment will assist counsel in applying the principles to the remaining documents. Armed with a knowledge of the principles as they apply in this case and with a familiarity of the commercial cause, there is likely to be significant efficiency brought about by appointing counsel, in reducing, though perhaps not eliminating, arguments before the Court.

1. Given the very sensible acceptance by the State that the public interest would not be injured or prejudiced by revelation of the documents to a special counsel, the orders need not be fashioned with an eye to ensuring that counsel is no more than an amicus curiae . The State suggests that the Attorney-General (acting not as a Minister but as an independent, non-partisan guardian of the public interest in the administration of justice) choose the counsel. ERG submited that this was not appropriate in circumstances where it will be paying the counsel. In my view, the State's claim for public interest immunity gives it legitimate cause to participate in the choice of counsel. If the parties cannot agree on counsel chosen by the Attorney-General (bearing in mind questions of suitability and availability), the Court can resolve any such question of choice. Given the interest of the State, and given the ability of the Court to resolve any lack of agreement in the choice of counsel, there is perhaps no need to require, in the selection of counsel, that the Attorney-General act as an independent, non-partisan guardian of the public interest, as was suggested.

Postscript

1. After the preparation of these reasons, the Court was notified by communication from counsel (without leave) of the decision of the United Kingdom Supreme Court in Al Rawi v The Security Service [2011] UKSC 34, which was handed down on 13 July 2011. No submissions had been put to the Court on the Court of Appeal decision in that litigation ([2010] EWCA Civ 482). That case concerned the lawfulness of a "closed material procedure" described in [1] of Lord Dyson's reasons as follows:

"Could it be lawful and proper for a court to order that a 'closed material procedure' (as defined below) be adopted in a civil claim for damages?

Definition of 'closed material procedure'

A 'closed material procedure' means a procedure in which

(a) a party is permitted to

(i) comply with his obligations for disclosure of documents, and

(ii) rely on pleadings and/or written evidence and/or oral evidence

without disclosing such material to other parties if and to the extent that disclosure to them would be contrary to the public interest (such withheld material being known as 'closed material'), and

(b) disclosure of such closed material is made to special advocates and, where appropriate, the court; and

(c) the court must ensure that such closed material is not disclosed to any other parties or to any other person, save where it is satisfied that such disclosure would not be contrary to the public interest.

For the purposes of this definition, disclosure is contrary to the public interest if it is made contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest."

1. Silber J had answered the question in the affirmative, the Court of Appeal (Lord Neuberger of Abbotsbury MR, Maurice Kay LJ and Sullivan LJ) in the negative. By majority (Lord Dyson, with whom Lord Hope, Lord Brown and Lord Kerr agreed and Lord Phillips; Lord Mance, Lady Hale and Lord Clarke dissenting) the Supreme Court dismissed the appeal.

1. As can be seen from the terms of the closed procedure, it went well beyond the limited role of a special counsel here and in the earlier cases. It concerned how evidence would be deployed in the case. The procedure contemplated the deployment, in effect in secret, of documents to which public interest immunity attached. It is unnecessary to discuss that fundamental issue in the resolution of this case. This case concerns a procedure to assist the Court and the parties to resolve contested issues of public interest immunity. This is fundamentally different and was recognised as different in Al Rawi as can be seen from [49] of Lord Dyson's reasons where his Lordship refers to the improvements in public interest immunity procedure that had been brought about by the use of special advocates, saying:

"There can be no objection to the use of special advocates for that purpose, since the PII [public interest immunity] process fully respects the principles of open justice and natural justice. There is nothing objectionable about excluding a party from the PII process. There can, therefore, be no objection to improving the position of that party in the process by the use of a special advocate."

1. In the light of the approach taken by the State to the argument here, the late reference (without leave) to Al Rawi does not change my views as to the disposition of this application.

1. Thus, I would make the following orders in this case:

(a) The Court, through the Registrar of the Court of Appeal, request the Attorney-General to nominate counsel considered appropriate to act as special counsel in the proceedings in order that the issue of public interest immunity be resolved as expeditiously as possible.

(b) If the Attorney-General fails to nominate such a counsel or if the State and ERG cannot agree on the person so nominated, the appointment will be made, after hearing the parties, by the President of the Court of Appeal.

(c) The special counsel receive instructions from ERG prior to inspecting the confidential documents. Once the confidential material has been provided to and inspected by special counsel, he or she receive no further instructions from ERG, without the prior agreement of the solicitors for the State of New South Wales.

(d) The special counsel not disclose to ERG or its legal representatives or to any person other than the Court and the State and its legal representatives the contents of the confidential documents.

(e) The special counsel make submissions to the Court in respect of the claim for public interest immunity, in accordance with the directions of the Court and in the absence of ERG or in a manner and form as maintain the confidentiality of the documents.

(f) Following the determination of the State's public interest immunity claim, the special counsel take no further part in the proceedings.

(g) The fees for the special counsel be paid, in the first instance, by ERG and such costs be reserved to the bench hearing the public interest immunity claim.

1. HODGSON JA: I agree with Allsop P.

1. SACKVILLE AJA: I agree with the orders proposed by the President and with his Honour's reasons.

**********

Decision last updated: 22 July 2011