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

The Court of Appeal of New South Wales considered an interlocutory appeal concerning the discoverability of documents claimed to be protected by public interest immunity. The dispute arose between the State of New South Wales and the Public Transport Ticketing Corporation (and other respondents) regarding the application of this immunity in light of amended pleadings.

The primary legal issues before the Court were whether it should reconsider its prior decision on the application of public interest immunity to a category of documents, given the amended pleadings, and whether it was appropriate to appoint a special counsel to resolve the public interest immunity claim. The Court was also required to consider the relevant duties under the *Civil Procedure Act 2005* (NSW), including the overriding purpose of achieving the just, quick and cheap resolution of the real issues in the proceedings.

The Court reasoned that the amended pleadings necessitated a reconsideration of the public interest immunity claim. To address the complex issues of fairness, justice, and efficiency, and to give effect to the Court's duty under section 56(2) of the *Civil Procedure Act 2005*, the Court determined that the appointment of special counsel was appropriate. The special counsel would be tasked with inspecting the confidential documents and making submissions to the Court regarding the public interest immunity claim, while maintaining the confidentiality of the documents from the other parties.

The Court ordered the disclosure of specific paragraphs from certain documents. It also directed the Registrar to request the Attorney-General to nominate counsel to act as special counsel. The process for nomination, agreement, and the scope of the special counsel's role, including their instructions, disclosure limitations, and eventual withdrawal from the proceedings, were detailed in the orders. The fees for the special counsel were to be paid initially by the respondents, with costs reserved.