State of Victoria v Intralot Australia Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0092

STATE OF VICTORIA	Applicant
v
INTRALOT AUSTRALIA PTY LTD (ACN 114 435 531)	Respondent

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JUDGES:	BEACH and KYROU JJA, CAVANOUGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 October 2015
DATE OF JUDGMENT:	18 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 358
JUDGMENT APPEALED FROM:	[2015] VSC 407 (Hargrave J)

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STATUTORY INTERPRETATION – Discovery and inspection of documents – Statutory secrecy provisions – Whether secrecy provisions in the Gambling Regulation Act 2003 preclude an order for inspection of particular discovered documents, or production of those documents at hearings, or both – Gambling Regulation Act 2003 ss 10.1.29, 10.1.30, 10.1.31, 10.1.32.

CONSTITUTIONAL LAW – Whether secrecy provisions in the Gambling Regulation Act 2003 limit the jurisdiction, powers and authorities of the Supreme Court for the purposes of s 85 of the Constitution Act 1975 – Whether manner and form requirements in s 85(5) of the Constitution Act 1975 were required to be complied with – Gambling Regulation Act 2003 ss 10.1.29, 10.1.30, 10.1.31, 10.1.32 – Constitution Act 1975 s 85.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R M Niall QC, S-G with Mr G A Hill	Victorian Government Solicitor’s Office
For the Respondent	Mr N J O’Bryan SC with Mr D B Clough	Maddocks

BEACH JA

KYROU JA
CAVANOUGH AJA:

Introduction and overview

The applicant, the State of Victoria, is the defendant in a pending proceeding brought against it by the respondent, Intralot Australia Pty Ltd (‘Intralot’), in the Trial Division of this Court. The proceeding was commenced by a writ filed in August 2013. A statement of claim was filed in August 2014. Intralot’s claim is for damages in excess of $63 million for alleged breach of contract and alleged misleading and deceptive conduct contrary to s 9 of the Fair Trading Act 1999. The conduct complained of is said to have been engaged in by representatives of the State between 2005 and 2007 in connection with what Intralot describes as a ‘tender process’[1] involving competitive parallel applications made by Intralot and a trade rival, Tattersalls’ Sweeps Pty Ltd (‘Tattersalls’), for public lottery licences under the Gambling Regulation Act 2003 (‘the Act’). The State filed and served a defence and counterclaim, and Intralot filed a reply and defence to counterclaim.
[1]A description denied by the State.

On 19 December 2014 the Court ordered that the parties make general discovery and provide inspection of documents. On 21 April 2015 the State filed and served a List of Documents. Part 2 of Schedule 1 of the List listed documents that the State contended were exempt from production. The State claimed that 441 of these documents (‘the Tatts documents’) contained information with respect to the affairs of Tattersalls and that the Tatts documents were exempt from production by reason of secrecy provisions contained in Division 6 of Part 1 of Chapter 10 of the Act. There was a hearing on 31 July 2015 to determine the State’s objection to production of the Tatts documents.

On 25 August 2015 the primary judge ordered the State to produce the Tatts documents for inspection by Intralot. The State now applies for leave to appeal, and if leave be granted it appeals, from the order for inspection of the Tatts documents.

The primary judge was satisfied that, apart from a Victorian constitutional question, one of the secrecy provisions in the Act relied upon by the State would have protected the Tatts documents from inspection by Intralot, and that another such provision would have protected the documents from having to be produced ‘in Court’ or ‘to the Court’.[2] However, his Honour held that those provisions were ineffective for Victorian constitutional reasons. He held that the secrecy provisions purported indirectly to alter s 85 of the Constitution Act 1975 by modifying, restricting or limiting the powers and authorities of the Supreme Court of Victoria in relation to discovery, inspection and production of documents. A provision of an Act that purports indirectly to alter the jurisdiction, powers or authorities of the Supreme Court is rendered ineffective by s 85(5) of the Constitution Act 1975 unless the ‘manner and form’ provisions of that subsection have been complied with during the legislative process.[3] It was common ground that there had been no such compliance in this instance.
[2]These expressions were apparently derived by his Honour from the relevant secrecy provisions in the Act. The meaning of the corresponding expressions in those provisions is a matter of controversy on this appeal. We will return to that matter in due course.
[3]Broken Hill Proprietary Company Ltd v Dagi [1996] 2 VR 117, 149, 185 (‘Dagi’).

Each of the three proposed grounds of appeal set out in the application for leave to appeal relates to the constitutional issue, as distinct from the primary judge’s construction and application of the secrecy provisions. However, by virtue of a notice of contention filed by Intralot, and as a result of the course of argument at the hearing, certain prior questions relating to the proper construction and application of the secrecy provisions arise as well.

For the reasons set out below, we consider that leave to appeal should be granted, the appeal should be allowed and the application for inspection of the Tatts documents should be remitted to the Trial Division to be determined in accordance with law.

Leave to appeal

The order below is an interlocutory order relating to a matter of practice and procedure, namely the inspection of discovered documents. Ordinarily, appellate courts are reluctant to interfere with such orders. However, this case is out of the ordinary. It involves certain statutory provisions being declared ineffective for State constitutional reasons, a rare thing in Victoria or in any other Australian State. The case is one of public importance.

Intralot apparently recognises this. In its written case, its argument against the grant of leave to appeal was confined to the proposition that none of the three proposed grounds of appeal had a real prospect of success.[4] However, that proposition was not repeated orally at the hearing.
[4]Supreme Court Act 1986 s 14C.

We respectfully differ from the primary judge in certain respects in relation to the construction and application of the secrecy provisions. Moreover, we consider that there is a sound basis for the proposed challenge to the primary judge’s constitutional ruling.

It follows that this is an appropriate case for the grant of leave to appeal.

The Act and the secrecy provisions

As mentioned above, Intralot’s allegations in the proceeding below relate to events between 2005 and 2007. All or most of the documents in question were created during that period. The Act, having been introduced in 2003, was amended from time to time before, during and after the period between 2005 and 2007. However, the particular provisions of the Act to which we are about to refer, apart from the secrecy provisions, have been included in the Act at all relevant times without significant alteration. From the outset, Division 6 of Part 1 of Chapter 10 of the Act has contained secrecy provisions. But, as from 15 August 2006, a new Division 6 was substituted pursuant to the Gambling Regulation (Further Miscellaneous Amendments) Act 2006. Some of the changes made in that regard were substantial. To the extent that those changes may assist in the interpretation of the current provisions, we will return to them. The substituted secrecy provisions have themselves been amended from time to time. However, before the primary judge and before us, the parties have proceeded on the basis that the liability of the Tatts documents to inspection by Intralot in this proceeding (i.e. in or about 2015) is to be considered by reference to the current form of Division 6, not any earlier form of it. The primary judge also proceeded on that basis. There has been no suggestion that his Honour erred in doing so. We will do likewise.

The Act is lengthy. It exceeds 1046 pages, not counting the extensive schedules. As stated in s 1.1(1), the main purpose of the Act is to re-enact and consolidate the law relating to various forms of gambling. The main objectives of the Act, as stated in s 1.1(2), include ensuring that the forms of gambling permitted by the Act are conducted honestly and that their management is free from criminal influence and exploitation.[5] Another main objective is to promote tourism, employment and economic development generally in the State.[6] An outline of the Act is given in s 1.1(3). Included in the outline are statements that the Act —

·generally prohibits gambling and activities relating to gambling unless authorised under the Act or the Casino Control Act 1991;[7]
·provides for the conduct under licence of public lotteries (among certain other permitted forms of gambling);[8] and
·confers functions and powers and imposes duties on a body established under the Act, namely the Victorian Commission for Gambling and Liquor Regulation (‘the Commission’), to oversee gambling in Victoria.[9]

The Act binds the Crown in right of Victoria.[10]

[5]The Act, s 1.1(2)(b), (c) and (d).

[6]Ibid s 1.1(2)(f).

[7]Ibid s 1.1(3)(a).

[8]Ibid s 1.1(3)(d).

[9]Ibid s 1.1(3)(j).

[10]Ibid s 1.6.

Part 3 of Chapter 5 of the Act regulates applications for, and the grant or refusal of, public lottery licences. Part 3 reposes some functions in the Commission and other functions in the responsible Minister. The Minister is to determine from time to time the number of public lottery licences that may be issued and the public lotteries those licences may authorise to be conducted.[11] The function of issuing a public lottery licence is vested in the Minister.[12] The Minister may, from time to time, by notice published in the Government Gazette, call for registrations of interest in the grant of a public lottery licence.[13] Only a body corporate with a physical place of business in Victoria may register interest in the grant of a public lottery licence. The person must provide ‘to the Minister’ the information which is required to be provided by a registrant as specified in the notice published by the Minister in the Government Gazette.[14] The Minister is required to consider each registration of interest and, if the registration of interest satisfies all specified requirements, the Minister must refer it to the Commission.[15] The Commission must then report to the Minister on the information that has been supplied by the registrant.[16] After considering the Commission’s report, the Minister may invite one or more registrants to apply for a public lottery licence.[17] The next step is for an invitee to apply to the Minister for a public lottery licence.[18] A licence application must be in the form required by the Minister and must be lodged in accordance with the procedural requirements, if any, specified by the Minister.[19] The Minister may require an applicant to provide any further information to the Minister in connection with the application.[20] The Minister must refer each licence application to the Commission.[21]
[11]Ibid s 5.3.1.
[12]Ibid s 5.3.2 and s 5.3.5.
[13]Ibid s 5.3.2A.
[14]Ibid s 5.3.2A(2)(b) and s 5.3.2A(3)(d).
[15]Ibid s 5.3.2A(4).
[16]Ibid s 5.3.2A(6).
[17]Ibid s 5.3.2A(7).
[18]Ibid s 5.3.3.
[19]Ibid s 5.3.3(2).
[20]Ibid s 5.3.3(4).
[21]Ibid s 5.3.3(5).

Section 5.3.4 of the Act is worth setting out in full because it gives a good indication of the kind of information that is likely to be contained in the documents presently in dispute. (The primary judge was not invited to, and did not, view the Tatts documents. We are in the same position.) Section 5.3.4 is as follows:

5.3.4 Report to Minister by Commission
(1)The Commission must give a written report to the Minister on each licence application, stating whether or not, in the Commission's opinion—
(a)the applicant, and each associate of the applicant, is of good repute, having regard to character, honesty and integrity;
(b)the applicant, or an associate of the applicant, has an association with a person or body that is not of good repute having regard to character, honesty and integrity as a result of which the applicant or the associate is likely to be significantly affected in an unsatisfactory manner;
(c)each executive officer of the applicant and any other person determined by the Commission to be concerned in or associated with the ownership, management or operation of the applicant's business, is a suitable person to act in that capacity;
(d)the applicant has sufficient technical capability and adequate systems to conduct the public lottery to be authorised by the licence;
(e)the applicant is of sound and stable financial background;
(f)the applicant has financial resources that are adequate to ensure the financial viability of a public lottery business;
(g)the applicant has the ability to establish and maintain a successful public lottery business;
(h)the Responsible Gambling Code of Conduct accompanying the application complies with any directions given under section 10.6.6 and the additional requirements set out in section 10.6.7, and has been approved by the Commission.

(2)The report may include any recommendations the Commission thinks fit, including recommendations as to any appropriate licence conditions.
(3)The report must include the reasons for any findings or recommendations contained in it.

As already mentioned, it is for the Minister to determine whether to grant or refuse a licence application after receiving the report of the Commission.[22]
[22]Ibid s 5.3.5.

The Minister may impose any conditions he or she thinks fit on a public lottery licence.[23]
[23]Ibid s 5.3.7.

A public lottery licence takes effect at the time of issue or at a later time specified in the licence and is valid for the term, not exceeding 10 years, specified in the licence, unless terminated earlier or extended under the Act.[24]
[24]Ibid s 5.3.8.

We turn now to the (current) secrecy provisions of the Act. The Chapter in which they appear, Chapter 10, is entitled ‘Administration and enforcement’. As mentioned above, the secrecy provisions themselves are to be found in Division 6 of Part 1 of Chapter 10. That Division is entitled ‘Confidentiality’. It is desirable to set out the whole of Division 6.

Division 6—Confidentiality
10.1.29 Definitions
(1) In this Division—
court includes any tribunal, authority or person having power to require the production of documents or the answering of questions;

enforcement agency means a person or body in Victoria or another jurisdiction (whether in or outside Australia)—
(a)that is responsible for, or engages in, law enforcement generally; or
(b)that is approved by the Minister under subsection (2);

gambling regulator means a person or body in Victoria or another jurisdiction (whether in or outside Australia) that is responsible for the licensing, supervision or regulation of gambling activities;
produce includes permit access to;

protected information means information, other than pre- commitment information within the meaning of section 3.8A.24, that is—
(a)information with respect to the affairs of any person; or
(b)information with respect to the establishment or development of a casino;

regulated person means the Commission or a person who is or was—
(a) a commissioner;
(b)an employee or member of staff referred to in section 10.1.25(1) or (2);

(c)       a person nominated under section 10.1.25(3);
(d)      the Minister;
(e)       the Secretary;
(f)an employee in the department administered by the Minister;

(g) a person nominated under section 10.1A.1(1);
(h)a person acting on behalf of the Commission, the Minister or the Secretary;
(i)a member of the Review Panel established by section 10.2A.2.

(2)The Minister may, by written notice given to the Commission, approve as an enforcement agency a person or body that is responsible for, or engages in, the administration of a licensing or other regulatory scheme that requires licensees or other persons regulated to be suitable, or fit and proper, persons.

10.1.30 General duty of confidentiality
(1)A regulated person must not, directly or indirectly, make a record of, or disclose to someone else, any protected information acquired by the person in the performance of functions under a gaming Act or gaming regulations.
Penalty: 60 penalty units.
(2)Subsection (1) does not apply to—
(a)a record or disclosure made in the performance of, or for the purpose of performing or enabling someone else to perform, a function under—
(i)a gaming Act or gaming regulations; or
(ii)the Liquor Control Reform Act 1998 or regulations made under that Act; or

(b)a record or disclosure permitted or required to be made by or under another provision of this Division.

10.1.31 Disclosure in legal proceedings
(1)Subject to subsection (2), a regulated person is not, except for the purposes of a gaming Act or gaming regulations, permitted or required—
(a)to produce in a court a document that has come into the person's possession or under the person's control; or
(b)to disclose to a court any protected information that has come to the person's notice—

in the performance of functions under a gaming Act or gaming regulations.
(2)A regulated person may disclose, or be required to disclose, protected information to a court or produce, or be required to produce, in court any document containing information if—
(a)the Minister certifies that it is necessary in the public interest that the information should be disclosed to a court; or
(b)the person to whose affairs the information relates has expressly authorised it to be disclosed to a court.

10.1.32 Other permitted disclosures
(1)A regulated person may disclose protected information—
(a)with the consent (express or implied) of the person to whose affairs the information relates; or
(b)to an enforcement agency for the purpose of law enforcement; or
(c)to a gambling regulator for regulatory or law enforcement purposes; or
(d)with the authorisation of the Minister or the Commission under subsection (3); or
(e)if the information was considered at a meeting or inquiry, or part of a meeting or inquiry, of the Commission that was held in public.

(2)In addition to any disclosure permitted under subsection (1), the Minister or the Commission may disclose protected information (except to a court) if the Minister or the Commission (as the case requires) considers that—
(a)disclosure of the information is in the public interest; or
(b)in the circumstances, disclosure of the information is not unreasonable.

(3)The Minister or the Commission may authorise the disclosure of protected information, or protected information of a specified class, if the Minister or the Commission (as the case requires) considers that—
(a)disclosure of the information, or information of the class, is in the public interest; or
(b)in the circumstances, disclosure of the information, or information of the class, is not unreasonable.

(4)An authorisation under subsection (3) may be expressed to apply to a specified regulated person, to regulated persons of a specified class or to all regulated persons.
(4A)An authorisation cannot be given under subsection (3) to disclose protected information to a court.
Note
The disclosure of protected information to a court is dealt with in section 10.1.31.
(5)A function of the Commission under subsection (3) may be performed by any commissioner.

10.1.33 Aggregation of statistical information
(1)Any statistical information published about gambling expenditure in relation to gaming venues (whether pursuant to an authorisation under section 10.1.32(3) or otherwise) must be aggregated—
(a)to give the total gambling expenditure for all approved venues in a municipal district; and
(b)if a municipal district has less than 3 approved venues, to give the total gambling expenditure for all approved venues in the municipal district together with an adjoining municipal district or districts so that the statistical information indicates gambling expenditure for at least 3 approved venues—

except as authorised by or under subsection (2).
(2)The Minister or the Commission may publish, or authorise the publication of, disaggregated statistical information if the Minister or the Commission (as the case requires) considers that—
(a)publication is in the public interest; or
(b)in the circumstances, publication is not unreasonable.

10.1.34 Third party disclosures
(1)A person (other than a regulated person) to whom protected information is disclosed by a regulated person must not make a record of, or disclose to someone else, any of the information.
Penalty: 60 penalty units.
(2)Subsection (1) does not apply to—
(a)a record or disclosure made with the prior written authorisation of the Commission or the Minister; or
(b)a record or disclosure made by an enforcement agency or a gambling regulator in the performance of functions of the agency or regulator (as the case requires); or
(c)protected information that has been given in evidence or produced before a court.

The positions of the parties: assumptions and issues of fact

At all material times the State has relied on s 10.1.30 of the Act as an answer to Intralot’s claim for inspection of the Tatts documents. Whether, at any time prior to the oral hearing before us, the State had also relied on s 10.1.31, and if so in what way, is a little obscure. In any event, in his initial oral submissions before us, the Solicitor-General contended, on behalf of the State, that the two sections had to be read together, because otherwise the statutory scheme would not work. We understood the Solicitor-General to be embracing the conclusions which had been arrived at by the primary judge in this regard. His Honour had concluded that, the constitutional issue aside, s 10.1.30 would preclude inspection by Intralot of the Tatts documents whereas s 10.1.31 would not. His Honour had also concluded, as we understand his judgment, that, apart from the constitutional issue, s 10.1.31 would prevent the Court from requiring the State to produce the Tatts documents in court during an actual hearing or to disclose any protected information in those documents to a court during an actual hearing.[25]
[25]Intralot Australia Pty Ltd v Victoria [2015] VSC 407, [26], [27], [29], [38], [40] (‘Reasons’).

However, we indicated to the parties that we considered, provisionally, that the true source of any preclusion of inspection by Intralot might be s 10.1.31 rather than s 10.1.30, and we referred to a well-known line of authority[26] to the effect that a prohibition on disclosure to ‘a person’ — or a prohibition worded in a similar way — should not be interpreted as including a prohibition on disclosure in the context of a proceeding in a court. We indicated that we wished to hear the parties’ submissions on this proposition. We considered that it was appropriate, and indeed necessary, for us to raise it as being possibly the proper way in which the statute might need to be interpreted and applied.[27] Ultimately, as we understood him, the Solicitor-General adopted the proposition, albeit in the alternative. Mr O’Bryan SC, for Intralot, expressly indicated that his client raised no objection to the State doing so. He acknowledged that the point was one of law and that it was not one that could have been met by the calling of additional evidence.[28]
[26]Commencing with Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1. See further [55] below.
[27]See DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis, 8^th ed, 2014) [1.6], and the cases there cited; Clarke v Great Southern Finance Pty Ltd [2014] VSC 516, [463] (Croft J).
[28]Transcript of proceedings, State of Victoria v Intralot (Court of Appeal, Beach and Kyrou JJA and Cavanough AJA, S APCI 2015 0092, 30 October 2015) (‘Transcript’) 51–52, referring to Whisprun Pty Ltd v Dixon (2003) 200 ALR 447.

Section 10.1.31 is curiously drafted in relation to ‘protected information’. On one reading of the section, a document containing no ‘protected information’ could fall within it. Paragraphs (a) and (b) of subsection (1) are separated by a semicolon and by the word ‘or’. Hence, at first sight, they appear to be alternatives to each other and independent of each other. So, omitting paragraph (b) for the moment, the subsection would read:

Subject to subsection (2), a regulated person is not, except for the purposes of a gaming Act or gaming regulations, permitted or required … to produce in a court a document that has come into the person’s possession or under the person’s control … in the performance of functions under a gaming Act or gaming regulations.

The contrary view is that words such as ‘containing protected information’ should be read into paragraph (a). There is support for this contrary view in the language and structure of Division 6 as a whole, with its numerous references to ‘protected information’. On the other hand, the indications from subsection (2) of s 10.1.31 itself are at best equivocal. If the intention is to limit the restriction in subsection (1)(a) to documents containing ‘protected information’, it is odd that the word ‘protected’ does not appear between ‘containing’ and ‘information’ in the chapeau to subsection (2).

In the end, we need not, and will not, express a concluded view as to whether s 10.1.31 applies to documents which contain no protected information. The issue was not referred to below, either by the primary judge or, it would seem, by the parties. It was not raised in the parties’ written materials before this Court. We raised it during oral argument, but neither party adopted any clear position on it. This may be explained on the basis that the State has maintained at all times that, for the purposes of s 10.1.30(1), each of the Tatts documents contains ‘protected information acquired by [the regulated person in question] in the performance of functions under a gaming Act or gaming regulations’. It seems to follow that, even if a reference to ‘protected information’ needs to be read into s 10.1.31(1)(a), the State would now maintain that the Tatts documents would still be caught by that provision also. Further, we understand that the State would now maintain that the Tatts documents also come under s 10.1.31(1)(b), on the basis that to disclose a document containing protected information acquired by a regulated person in the performance of functions under gaming legislation would also amount to disclosing protected information that has come to a regulated person’s notice in the performance of such functions.

Accordingly, we will assume, without deciding, that the expression ‘(containing protected information)’ is to be read into the first line of s 10.1.31(1)(a) after the word ‘document’. Grammatically, the effect of this assumption is that the expression ‘that has come into the person’s possession or under the person’s control…in the performance of functions under a gaming Act or gaming regulations’ in s 10.1.31(1)(a) would continue to qualify the word ‘document’, as distinct from qualifying the phrase ‘protected information’.

Although Mr O’Bryan SC raised no objection to the State relying on s 10.1.31 in relation to the matter of inspection of the Tatts documents, he did contend that, even if (contrary to Intralot’s contention) one or other (or both) of s 10.1.30 and s 10.1.31 could apply to the inspection of discovered documents, and regardless of which of those sections could so apply, there would remain an outstanding factual dispute that would eventually need to be resolved if leave to appeal were granted and the appeal were allowed. By contrast, earlier in the hearing,[29] the Solicitor-General had informed us, in effect, that he understood it to be common ground that all of the Tatts documents contained ‘protected information’ within the meaning of the Act; that, for the purposes of s 10.1.30, all of the protected information had been acquired by a regulated person in the performance of functions under a gaming Act; and that, for the purposes of s 10.1.31 (if that was the applicable provision), all of the Tatts documents had come into a regulated person’s possession or under a regulated person’s control in the performance of functions under a gaming Act and all of the protected information had come to a regulated person’s notice in the performance of functions under a gaming Act. However, according to Mr O’Bryan SC, this was not so. He told us that it was not common ground that any, much less all, of the Tatts documents had the features described by the Solicitor-General. He referred to complaints said to have been made, repeatedly, by Intralot’s solicitors to the effect that the State had given insufficient particulars of the Tatts documents and of the information contained in them. On the other hand, Mr O’Bryan SC went on to accept that it was likely that some, perhaps many, of the Tatts documents would answer the descriptions given by the Solicitor-General; and that therefore it was appropriate for this Court to proceed to determine the disputed issues of law and principle on the assumption that some, at least, of the Tatts documents were as described by the Solicitor-General.[30]
[29]Transcript 4, 7.
[30]Transcript 60.

Later again, Mr O’Bryan SC raised a related factual matter. He submitted that it was not known who now had the Tatts documents. However, Mr O’Bryan then conceded, as we understood him, that if, contrary to Intralot’s submission, s 10.1.31 was capable of applying generally to processes of discovery and inspection (and was constitutionally effective), then, to the extent that the Tatts documents were in the hands of regulated persons (and otherwise met the criteria set out in s 10.1.31), the State could not be compelled to produce the documents for inspection.[31] This exchange seemed to involve a concession by Mr O’Bryan SC that one of the contentions raised in Intralot’s notice of contention, namely the contention raised in paragraph 3 thereof, was not maintainable. The Solicitor-General so submitted, in effect, in his reply.[32] However, in case we have misunderstood the effect of what Mr O’Bryan SC said in this regard, we will deal with the relevant contention in due course.
[31]Transcript 73–74.
[32]Transcript 81.

As to the factual record more generally, we took the Solicitor-General to accept that, if the State were otherwise successful, it might still be open to Intralot to contend that certain factual issues remain outstanding, such as the question of the extent to which the Tatts documents contain protected information, or the question of the extent to which the Tatts documents satisfy the other conditions set out in s 10.1.30 or s 10.1.31 (as the case may be).

By an arrangement made at the hearing before this Court, the parties have since supplied us with copies of two affidavits which were filed for the purposes of the hearing before the primary judge on 31 July 2015, namely an affidavit sworn on 17 June 2015 by Siobhan Anne Sheppard, the solicitor with the carriage of this matter for Intralot, and an affidavit sworn on 23 July 2015 by Andrew Suddick, a solicitor in the employ of the Victorian Government Solicitor’s Office, who has the carriage of the matter on behalf of the State. The affidavit of Ms Sheppard supports the statement made to us by Mr O’Bryan SC that Intralot had been complaining for some time about an alleged lack of specificity on the part of the State. In particular, Ms Shepard complained in the affidavit that the State had failed to indicate the precise extent to which each document was said to contain protected information and to indicate whether the State was seeking exemption for the entirety of each document even where the protected information represented only a part of its contents. The affidavit in reply of Mr Suddick might be said to have provided at least some of the requested detail, but we have no means of knowing how this debate was left at the time of the hearing before the primary judge. His Honour made no reference to the debate or to either of the affidavits or to any factual issues at all.

Given that we do propose to grant leave to appeal and to allow the appeal, we will need, ultimately, to remit the application for inspection to the primary judge to enable him to determine the extent to which either side should be at liberty to press any factual contentions relating to the Tatts documents and for him to decide such factual issues in that regard as he considers to be properly contestable at that stage, taking into account the whole history of the matter, including such positions as may have been taken by the parties in front of his Honour on 31 July 2015. In addition, we would leave it to the primary judge to decide, as a matter of construction of the legislation, whether the whole of a document is exempt from production where only a part of it consists of protected information. We ourselves have not heard argument on that particular point.

In the meantime, we will proceed on the assumptions that, for the purposes of s 10.1.30(1) and s 10.1.31(1), some of the Tatts documents, at least, contain protected information; that the protected information in the Tatts documents was acquired in the manner specified in s 10.1.30(1); that the Tatts documents (containing the protected information) came into the relevant regulated person’s possession or under that person’s control in the manner specified in s 10.1.31(1)(a); and that the protected information in the Tatts documents came to notice in the (identical) manner specified in s 10.1.31(1)(b).

The remaining issues

On the assumptions set out above, and having regard to the arguments of the parties, we would list the remaining issues (which are essentially issues of law) in the following way:[33]
[33]This list represents a modified version of the list of the issues said to have arisen before the primary judge which is set out in paragraph 16 of the parties’ agreed summary for the Court of Appeal dated September 2015.

(i) Are the secrecy provisions inapplicable in this case because the State itself is not listed as a ‘regulated person’ in s 10.1.29 of the Act?

(ii) Subject to the constitutional issue and to the exception in s 10.1.30(2)(a)(i), does s 10.1.30 of the Act preclude a court from ordering the inspection of discovered documents containing information of the kind to which the section applies?

(iii) If the answer to (ii) is yes, does the exception in s 10.1.30(2)(a)(i) apply in this case on the basis that disclosure of the Tatts documents by way of inspection by Intralot would be ‘disclosure made in the performance, or for the purpose of performing or enabling someone else to perform, a function under a gaming Act or gaming regulations’?

(iv) Subject to the constitutional issue, does s 10.1.31 preclude a court from ordering the inspection of discovered documents of the kind to which the section applies?

(v) If the answer to (ii) or (iv) is yes, is the Act to that extent rendered ineffective by s 85 of the Constitution Act 1975?

The non-inclusion of the State itself as a ‘regulated person’ in s 10.1.29

Intralot contended before the primary judge that Division 6 had no application to the circumstances of this case, because the person with the discovery obligation, the State, was not a defined ‘regulated person’.[34] His Honour did not accept the submission. He said:[35]

The definition of ‘regulated person’ includes persons who are all functionaries of the State in one way or another. It would be entirely inconsistent with the purpose of Division 6 to allow it to be circumvented by the simple device of subpoenaing the State to produce documents containing protected information which came into the State’s possession by means of its functionaries performing functions under gaming legislation.

[34]Reasons [13].

[35]Ibid.

This ruling is the subject of paragraph 3 of Intralot’s notice of contention, to which we have referred above.[36] That paragraph reads:

3.(a)The primary Judge found that the State was a “responsible [scil. regulated] person” within the meaning of s 10.1.29 of [the Act] (Reasons [13]).
(b)The primary Judge ought to have found that the State was not a “responsible [scil. regulated] person”.

[36]Paragraphs 1 and 2 of Intralot’s notice of contention dated 12 October 2015 relate to the constitutional issue.

If paragraph 3 of the notice of contention were an accurate statement of Intralot’s intended point, then the point would plainly be misconceived. The primary judge simply did not hold that the State was a regulated person within the meaning of s 10.1.29. However, judging by Intralot’s written case, we infer that the point which it originally intended to make was a somewhat different and more subtle point.

In its written case, Intralot submits that the primary difficulty with his Honour’s reasoning is that the State (and not any functionary) is the defendant and, as such, is the appropriate party to give discovery of relevant documents. Intralot submits that the definition in s 10.1.29 expressly refers to the Commission or ‘a person’, the latter term referring only to natural persons, including the Minister and employees in the department administered by the Minister. Intralot says that the legislature thus expressly had regard to specific representatives of the State and that, unless one attributes gross error to the legislature, it must have contemplated the likelihood of protected information being relevant to proceedings taken against the State ‘and in the possession of functionaries of the State other than those expressly listed in the definition’.[37] Intralot contends that a strict construction ought to be applied to s 10.1.29, which in its express terms ‘conspicuously does not list the State as a regulated person’.[38] Intralot contends (in its written case) that this is consistent with the text and purpose of Division 6, which, according to Intralot, is to limit disclosure of protected information by specifically identified classes of persons in specifically described circumstances.
[37]Intralot’s written case dated 12 October 2015, [20] (emphasis added).
[38]Ibid.

No authority in support of Intralot’s submissions on this issue was cited either in the written case or during oral argument. Moreover, as mentioned above, Mr O’Bryan SC appeared to back away from the issue altogether as the hearing went on.

It is important to recall here the assumptions on which we are proceeding. We are required to assume, among other things, that some of the Tatts documents, at least, contain protected information and that the protected information was ‘acquired’ by a regulated person in the performance of relevant functions (s 10.1.30(1)); or was contained in documents that came into a regulated person’s possession or under the person’s control in the performance of functions under a gaming Act or gaming regulations (s 10.1.31(1)(a)); or came to a regulated person’s notice in the performance of such functions (s 10.1.31(1)(b)). A corollary of these assumptions is that the original possessor of each of the relevant Tatts documents was a regulated person. As far as we are aware, there is nothing to indicate that any of the relevant Tatts documents[39] does not remain in the possession of the regulated person who was its original possessor or in the possession of a successor to the position of that original possessor. The successor would, by definition, be a regulated person also. Plainly, the secrecy provisions are intended to remain operative regardless of any change in the occupancy of the relevant offices and positions. In order to provide inspection of the relevant Tatts documents to Intralot, some representative of the State would have to obtain them from the persons currently in possession of them. Those persons should be taken to be regulated persons. And those persons would presumably be entitled to know why the documents were being sought from them. Hence, even if the final step of showing the documents to Intralot were to be carried out by a person other than a regulated person, regulated persons would still be knowingly and intimately involved in the process of producing and assembling the documents in order that the documents might be shown to Intralot. For the purposes of s 10.1.30, this would be tantamount to the regulated persons themselves disclosing the protected information to Intralot. Likewise, to the extent that inspection by Intralot would represent a disclosure otherwise within s 10.1.31(1), the regulated person would be centrally involved in the disclosure. In its written case, Intralot speaks of Parliament having contemplated that protected information might be in the possession of functionaries of the State ‘other than those expressly listed in the definition’. However, by assumption, the protected information in at least some of the Tatts documents is to be regarded as having been originally obtained by regulated persons. Further, there is as yet no evidentiary basis for a positive finding that any of the protected information in the Tatts documents has been transferred to or obtained by other functionaries of the State who are not regulated persons.
[39]As distinct from any copies of them which may have been made for the purposes of litigation.

As to the submission that the text and purpose of Division 6 is to limit disclosure of protected information by specifically identified classes of persons in specifically described circumstances, we note that, under the previous form of Division 6, the prohibitions on disclosure were, generally speaking, addressed very broadly to ‘a person’. According to the Minister’s Second Reading Speech for the Bill which introduced the substituted version of Division 6,[40] one of the main purposes of the new provisions was to restrict the application of the confidentiality provisions to the Minister and the Commission and those acting on their behalf. ‘In effect’, the Minister said:

this proposal ensures that the regime does not apply to information generated and held by the casino operator Crown Ltd or to any other gaming venue operator. Rather, the casino operator and gaming venue operators will be in the same position as any other private corporation governed by the regulatory framework.

The intention, it seems, was to exclude the private sector, not to exclude any relevant part of the public sector.

[40]Victoria, Parliamentary Debates, Legislative Assembly, 31 May 2006, 1457-8 (Mr Pandazopoulos, Minister for Gaming).

As we have already mentioned, Intralot did not cite any authority in support of its arguments on this issue. It might, perhaps, have cited the judgment of the Appeal Division of this Court in Law Institute of Victoria v Irving.[41]That case related to certain secrecy provisions in the Legal Profession Practice Act 1958 directed to accountants and other persons employed or appointed to carry out audits or examinations of the accounts of solicitors, and certain related secrecy provisions directed to the Council of the Law Institute. In a very brief passage,[42] the Appeal Division held that none of the secrecy provisions extended to prohibit the Law Institute itself from disclosing the documents in question on discovery. We do not regard ourselves as bound to adopt the same approach in this case. The language of both of the prohibitions in Irving was different; and the holding in question of the Appeal Division was not necessary to its decision. The Court had already concluded that the secrecy provisions did not apply because an express exception to them did apply. We derive greater assistance from the judgment of Spender J in Lloyd’s Ships Holding Pty Ltd v Davros Pty Ltd.[43] In that case the relevant secrecy provisions were much closer in form to the provisions with which we are concerned. They were expressed to be applicable to persons who held offices in, or who were employed by, the Australian Trade Commission, as distinct from the Commission itself. A subpoena for production of documents had been issued to the proper officer of the Commission itself. Spender J concluded that the ‘privileges’ created by the relevant provisions were those of the Commission, despite the fact that the Commission itself was not expressly referred to in those provisions as a person to whom or to which they applied.[44] His Honour further observed:[45]

The omission of the Commission itself from the application of the privileges is explicable on the practical basis that the Commission, in responding to the subpoena, must act through the person specified in s 94(1).

Much the same can be said here. When we drew this case to the attention of Mr O’Bryan SC, his initial response was to say that the case would be applicable in relation to a subpoena but not in relation to discovery and inspection. However, in our view, that is not a proper basis for distinguishing Lloyd’s Ships. The statutory privileges (as Spender J described them) were found to be, in truth, those of the Australian Trade Commission itself. Whether properly described as privileges or immunities or otherwise, they would have been equally available to the Australian Trade Commission in relation to discovery and inspection as they were in relation to a subpoena. The same applies in the present case.

[41][1990] VR 429 (‘Irving’).

[42]Ibid 435.

[43](1986) 11 FCR 287 (‘Lloyd’s Ships’).

[44]Ibid 291.

[45]Ibid.

Like the primary judge, we consider that to uphold Intralot’s arguments under paragraph 3 of the notice of contention would be quite contrary to the tenor and purpose of the provisions of Division 6. It could always be said that a document or information in the possession of a regulated person was also in the possession of the State. If Intralot were correct, all of the secrecy provisions in Division 6 would be illusory.

To the extent that Intralot persists with its arguments on this issue, we do not accept them. The answer we would give to issue (i) is: no.

The applicability of s 10.1.30 of the Act

As mentioned above, the primary judge held that, apart from the constitutional issue, s 10.1.30(1) of the Act would have protected the Tatts documents from disclosure to Intralot by way of inspection, whereas s 10.1.31 would not have done so. Of necessity, much of what we will say on this issue (issue (ii)) will be relevant to issue (iv) also. Our conclusion is the reverse of that arrived at by the primary judge. We consider that s 10.1.30(1) does not apply, but that s 10.1.31(1) does.

His Honour dealt with these points briefly. He noted a submission by Intralot that s 10.1.30 was irrelevant because s 10.1.31 was intended to cover the field with respect to the prohibition on disclosing protected information in the context of court proceedings.[46] His Honour observed that Intralot had relied on the heading to s 10.1.31 — ‘Disclosure in legal proceedings’ — in support of this submission. As to this, his Honour said:[47]

In my opinion, the heading is equivocal and cannot alter the words in s 10.1.31 which, insofar as they deal with disclosure, deal only with disclosure ‘to a court’, and not to a party in court proceedings or in relation to court proceedings. In my opinion, s 10.1.30 applies generally, including in the context of court proceedings.

[46]Reasons [14].

[47]Ibid [15].

His Honour then digressed to deal with a submission by Intralot that the exception in s 10.1.30(2)(a) applied. We will return to that point under issue (iii).

Next, the primary judge said that, if he was wrong in his conclusion that s 10.1.30 was relevant, and if s 10.1.31 contained the only relevant prohibition, he agreed with Intralot that s 10.1.31 did not prohibit inspection of the Tatts documents.[48] His Honour continued:[49]

The relevant question is whether, by complying with an order that it provide inspection of the Tatts documents to Intralot, the State is either producing documents ‘in a court’ or disclosing protected information ‘to a court’. In my opinion, s 10.1.31 does not direct itself to that question. A contrary conclusion concerning s 16(3) of the ITAA was reached by White J in Javorsky,[50] but that view was based upon the particular provisions of the Supreme Court Rules in New South Wales, which required any party who provides a list of documents to produce all documents listed at the trial of the proceeding. On this basis, White J reasoned that, although delayed until the trial, the effect of ordering discovery would be to require the Commissioner to produce documents containing information respecting the affairs of another person to a court, in contravention of s 16(3) of the ITAA.[51] There is no such requirement in this State. There is no equivalent rule in the Supreme Court (General Civil Procedure) Rules 2005 which requires a party who has provided a list or affidavit of documents to produce all of the discovered documents at trial.
I conclude that s 10.1.30(1) prohibits the State from providing inspection to Intralot of the Tatts documents. There is no such prohibition in s 10.1.31. Section 10.1.31(1) does, however, prohibit a court from requiring the State to produce the Tatts documents in court or to disclose the protected information in those documents to that court. This Court falls within the definition of ‘court’ in Division 6.

[48]Ibid [27].

[49]Ibid [28]-[29]. Footnotes renumbered to accord with the sequence of the footnotes to this judgment. See also at [40(2)].

[50](2005) 189 FLR 228.

[51]Ibid [38].

As we have already indicated, the initial position of the State before this Court was, in effect, to accept the primary judge’s conclusions in relation to ss 10.1.30(1) and 10.1.31(1) of the Act.

By contrast, Intralot’s notice of contention included the following (as paragraph 4):

4 (a)The primary Judge found that s 10.1.30 of [the Act] applies generally, including in the context of court proceedings (Reasons, [15]).
(b)The primary Judge ought to have found that s 10.1.31 applies in matters concerning court proceedings, to the exclusion of s 10.1.30.

In its written case, Intralot submitted that it did not follow from the non-application of s 10.1.31 to discovery and inspection (as found) that the general prohibition on disclosure in s 10.1.30 should apply instead. Rather, Intralot submitted, s 10.1.31 was the more specific and apt provision and its application (albeit limited) ought to have been preferred to the application of the general prohibition in s 10.1.30: generalia specialibus non derogant.[52] According to Intralot, s 10.1.31 was intended to cover the field with respect to disclosure of protected information in connection with court proceedings and the primary judge ought to have so determined as a threshold matter. Instead, according to Intralot, his Honour had combined the absence of express prohibition with respect to discovery and inspection in s 10.1.31 with the general prohibition in s 10.1.30, to find that s 10.1.31 did not exclude the application of the general prohibition. Intralot submitted that that logic was faulty.[53]
[52]Intralot’s written case dated 12 October 2015, [23].
[53]Intralot’s written case dated 12 October 2015, [24].

Intralot further argued in its written case that it would be consistent with ‘the interpretive principles discussed above’ to read s 10.1.30 and s 10.1.31 strictly, in order to preserve the greatest degree of disclosure that the express words will allow. This was apparently a reference back to certain observations of Hayne JA in Broken Hill Proprietary Company Ltd v Dagi[54] mentioned earlier in Intralot’s written case, and in particular to the following passage:[55]

Secondly, legislation which is said to restrict the inherent jurisdiction or powers of a superior court should be construed strictly if only because of the very nature of inherent jurisdiction.

[54][1996] 2 VR 117, 193, 202, 205.

[55]Ibid 193.

Taking this last point first, we agree with the response to it given by the State in its written reply,[56] to the effect that there is no interpretive principle that requires interpreting the provisions in question so as to preserve the greatest degree of disclosure — rather, it is a question of interpreting the words in the light of their

purpose and context.[57] More particularly, we agree with the State that the power of a superior court to order discovery and inspection of documents is not properly described as part of the inherent jurisdiction of the court.[58] The only case cited by Intralot for the contrary proposition is Equuscorp Pty Ltd v Malcolm.[59] In that case, Beach J said that ‘the court has inherent jurisdiction to require a party to litigation to produce any document in his possession relevant to the litigation, including any application in the litigation, prior to the trial of the litigation or the hearing of any application in the litigation’.[60] We agree with the State that his Honour’s statement was not necessary for the decision,[61] and that his Honour did not cite any supporting authority.[62] In fact, discovery could not be ordered at all in a common law court (as distinct from the ecclesiastical courts and the Court of Chancery) until the power to do so was conferred by the Common Law Procedure Act 1854 (UK).[63]
[56]State’s reply dated 16 October 2015 to Intralot’s notice of contention, [10].
[57]And see National Mutual Life Association of Australia-Asia Ltd v Godrich (1909) 10 CLR 1, 34-35 (Isaacs J); Foley v Tectran Corporation Pty Ltd [1984] 3 NSWLR 156, 161–163 (Kirby P) (‘Foley’).
[58]State’s reply dated 16 October 2015 to Intralot’s notice of contention, [1]–[6].
[59][2001] VSC 308; Intralot’s written case dated 12 October 2015, [12].
[60]Equuscorp Pty Ltd v Malcolm [2001] VSC 308, [28].
[61]Ibid [11]–[22], [25]–[27], [31]–[34], as noted in Dresna Pty Ltd v Misu Nominees Pty Ltd [2002] VSC 408 [39]–[40] (Habersberger J).
[62]As the State points out, Brown v Liell (1885) 16 QBD 229, to which Beach J did refer, supported only the narrower proposition that, before the enactment of rules of discovery, a party was entitled at common law to discovery of a document in the possession of an opposite party where both parties had a common interest in the document, for example a written contract to which both were parties.
[63]Bernard C Cairns, The Law of Discovery in Australia: Documents, Interrogatories and Property (The Law Book Company Ltd, 1984), 8-9; Edward Bray, The Principles and Practice of Discovery (Legal Books Pty Ltd, 1885, reprinted 1985), 5.

The nature and extent of the inherent jurisdiction of superior courts has been discussed extensively in judicial decisions and learned journals. Intralot referred us to two leading articles, one by I H Jacob written in 1970[64] and another by Keith Mason QC written in 1983.[65] Each author gives many examples of the inherent jurisdiction. Notably, however, neither refers to discovery and inspection as being part of the inherent jurisdiction. Nor does any such proposition gain support from the more recent discussion of the inherent jurisdiction of the Supreme Court of Victoria contained in the judgment of the Full Court in Marriner v Smorgon.[66]
[64]I H Jacob, ‘The Inherent Jurisdiction of the Court’ (1970) 23 Current Legal Problems 23.
[65]Keith Mason, ‘The Inherent Jurisdiction of the Court’ (1983) 57 Australian Law Journal 449.
[66][1989] VR 485.

In the present case, of course, the order for discovery is sought against the Crown. So far as discovery and inspection against the Crown is concerned, this Court’s powers are clearly not derived from its inherent jurisdiction. At common law, the Crown was immune from discovery, whether in civil or criminal proceedings.[67] Provision in statute is necessary to enable discovery against the Crown.[68]
[67]Commonwealth v Miller (1910) 10 CLR 742, 745-6 (civil proceeding); Sobh v Police Force of Victoria [1994] 1 VR 41, 41-2 (criminal proceedings); Peter W Hogg and Patrick J Monahan, Liability of the Crown (Carswell, 3^rd ed, 2000) 65, and cases there cited.
[68]S D Simpson, D L Bailey and E K Evans, Discovery and Interrogatories (Butterworths, 2^nd ed, 1990) 52-3 and the cases there cited, in particular Janson v A-G(Vic) [1982] VR 623. See also Law Commission of New Zealand, Issues Paper Number 35, ‘A New Crown Civil Proceedings Act for New Zealand’ (April 2014) [8.8].

It follows that the observations of Hayne JA referred to above on which Intralot relied are not applicable to the question of statutory interpretation that presently falls for consideration.

We return then to the text of ss 10.1.30 and 10.1.31, their context in Division 6 and in the Act as a whole, and the authorities decided in relation to comparable provisions.

Reading s 10.1.30 literally and in isolation, without reference to authority, and having regard to the assumptions required to be made in this case, one might well have thought that for a regulated person to allow Intralot to inspect the Tatts documents would be for that person to disclose to ‘someone else’ (Intralot) protected information acquired by the person in the performance of functions under a gaming Act or gaming regulations. A contravention of s 10.1.30 is a criminal offence. As Lord Wright said in a similar context in Rowell v Pratt:[69]

A judge cannot compel a man to commit a criminal offence.

[69][1938] AC 101, 106. See also P v P (1994) 181 CLR 583, 602 (Mason CJ, Deane, Toohey and Gaudron JJ).

However, authorities at the highest level stretching back over 60 years – well before the passage of the Act — make it clear that if an Australian legislature desires to enact a secrecy provision which would impinge on court procedures for the obtaining (by parties or by the court itself) of relevant information or evidence – such as pleadings, particulars, discovery, inspection, subpoenas or the giving of written or oral testimony – then the legislature will generally need to refer expressly to courts in this regard.[70] There is no such reference in s 10.1.30 but only in s 10.1.31. Thus, on the face of the two sections, the legislature has distinguished sharply between disclosure generally and disclosure in a ‘court’ context. This suggests strongly that Intralot is correct insofar as it submits that s 10.1.31 covers the relevant field.
[70]See Kalis v Kingborough Council [2014] TASFC 2, [17]-[34] and the many cases there cited, commencing (so far as Australian cases are concerned) with Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1, 6 (testimony by affidavit) and including Hilton v Wells (1985) 157 CLR 57, 87 (oral evidence); Potts v Dennis Jones & Co Ltd (1995) 58 FCR 61 (notice to produce and subpoenas); Transport Industries Insurance Co Ltd v Masel (Unreported, Supreme Court of Victoria, Byrne J, 28 June 1996) 17 (discovery and production for inspection). And see Lloyd’s Ships (1986) 11 FCR 287, 292 (subpoenas); Abrook v Paterson (Unreported, Federal Court of Australia, O’Loughlin J, 24 August 1995) 6–8 (subpoenas); Christoforidis v Cygnet Bulk Carriers SA (2002) 122 FCR 1, 6–7 [12]–[18] (subpoenas); Renehan v Leeuwin Ocean Adventure Foundation Ltd [2005] NTSC 22, [6] (Mildren J) (subpoenas).

There are other indications to the same effect in the legislation. Although both ss 10.1.30 and 10.1.31 are concerned with maintaining the confidentiality of ‘protected information’, they operate in quite different ways. Section 10.1.30 does not expressly mention documents. Section 10.1.31 does. Section 10.1.30 creates a criminal offence. Section 10.1.31 does not. Rather, it establishes general principles relating to what may happen in the court context.

Section 10.1.30(2) creates certain exceptions to the prohibitions stated in s 10.1.30(1), whereas s 10.1.31(1) and (2) create very different exceptions to the general principles stated in s 10.1.31(1). The latter are much more tightly defined. In sub-section 10.1.31(1), there is an exception for production or disclosure ‘for the purposes of a gaming Act or gaming regulations’. The corresponding exception in s 10.1.30 is:

for the purpose of performing or enabling someone else to perform, a function under –

(i)a gaming Act or gaming regulations; or
(ii)the Liquor Control Reform Act 1998 or regulations made under that Act;

There is a further exception in s 10.1.30(2)(b) for ‘a record or disclosure permitted or required to be made by or under another provision of this Division’. There is no corresponding exception in s 10.1.31. This tends to confirm that the numerous additional exceptions in s 10.1.32 are applicable only to the prohibition contained in s 10.1.30, that is to say they are not applicable in relation to the provisions in s 10.1.31 relating to disclosure in the court context.

If any further confirmation of that conclusion were required, there are two more sources for it. First, there is a note subjoined to s 10.1.32(4A) which states:

The disclosure of protected information to a court is dealt with in s 10.1.31.

Second, s 10.1.31(2) contains two exceptions that are expressed in much tighter fashion than the corresponding exceptions stated in s 10.1.32. Thus, s 10.1.31(2)(a) provides for an exception where the Minister certifies that it is ‘necessary’ in the public interest that the information should be disclosed to a court. The corresponding exception in s 10.1.32(1)(d), read with s 10.1.32(3), is that the Minister or the Commission may authorise disclosure if the Minister or the Commission (as the case requires) considers that disclosure of the information ‘is in the public interest’ or that, in the circumstances, disclosure ‘is not unreasonable’. Likewise, s 10.1.31(2)(b) provides for an exception where the person to whose affairs the information relates has ‘expressly’ authorised it to be disclosed to a court; whereas the corresponding exception in s 10.1.32(1)(a) refers to ‘the consent (express or implied) of the person to whose affairs the information relates’.

If s 10.1.30 did cover the inspection of discovered documents, then, presumably, the applicable exceptions would be those set out in ss 10.1.30 and 10.1.32, rather than the substantially more confined regime of exceptions set out in s 10.1.31. Odd consequences would follow. For example, inspection of documents containing protected information could be obtained if the Commission considered that disclosure of the information was ‘not unreasonable’, whereas the same information could not be put before a court under s 10.1.31 unless the Minister (as distinct from the Commission) certified that it was ‘necessary in the public interest’ that the information should be disclosed to a court. Likewise, inspection could be obtained with the implied consent of the person to whose affairs the information relates, whereas the same information could only be put before a court under s 10.1.31 if the person to whose affairs the information relates ‘expressly authorised it to be disclosed to a court’. It seems to us that Parliament could not have intended consequences like those.

The view that s 10.1.31 is intended to ‘cover the field’ with respect to disclosures ‘in the court context’, to the exclusion of s 10.1.30, accords with the language of the heading to s 10.1.31 (‘Disclosure in legal proceedings’), contrasting as it does with the language of the heading to s 10.1.30 (‘General duty of confidentiality’). Headings form part of the Act.[71] It is legitimate to take headings into account for the purposes of interpretation to the extent that the provisions in questions are ambiguous.[72]
[71]Interpretation of Legislation Act 1984, s 36(2A).
[72]DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis, 8^th ed, 2014) [4.52]-[4.53] and cases there cited, especially Ragless v District Council of Prospect [1922] SASR 299, 311; and [4.56] and cases there cited.

In our view, the headings are of assistance at two levels. First, the contrast between them tends to show that, in the court context, s 10.1.31 applies to the exclusion of s 10.1.30. Second, the heading to s 10.1.31, in particular, tends in favour of a broad interpretation of that section insofar as the heading speaks of disclosure ‘in’ legal proceedings. Disclosure by way of inspection pursuant to an order for inspection of discovered documents would fall naturally under the expression ‘Disclosure in legal proceedings’.

The expression in s 10.1.31(1)(a) ‘to produce in a court a document …’ should not be read restrictively. In s 10.1.29(1), the word ‘court’ is defined to include ‘any tribunal, authority or person having power to require the production of documents or the answering of questions’. As a matter of language, one does not speak of producing a document ‘in’ an authority or ‘in’ a person having power to require the production of documents or the answering of questions. So, ‘in a court’ may include ‘in a court building’ or ‘in a court proceeding’ but is not limited to those meanings. Parliament’s concern is with the exercise (by any relevant repository) of the power to require the production of documents or the answering of questions. Further, Parliament’s concern is not limited to a compulsory requirement to ‘produce’ a document ‘in a court’, in the sense of a compulsory requirement to produce a document as part of an actual hearing. The word ‘produce’ is defined in s 10.1.29(1) to include ‘permit access to’. So, Parliament’s concern extends to any exercise by a relevant repository of a power to require a regulated person to ‘permit access to’ a document containing protected information. The expression ‘produce in a court’ has been used in comparable provisions in other legislation, both state and federal, for decades. This usage may have something to do with the fact that discovery ‘was not made traditionally in the office of the holder of the documents, but was made at an independent place, usually at the registry of the Court or similar office’.[73]
[73]Curcio v Koltay (Unreported, Supreme Court of Victoria, Gobbo J, 10 May 1988) 3.

In any event, it is entirely appropriate to regard s 10.1.31 as precluding (except where paragraph (a) or paragraph (b) of subsection 10.1.31(2) applies) the making of an order by a court, or by any other relevant body or person, for the production for inspection of discovered documents which contain protected information and which otherwise fall within s 10.1.31. In Foley v Tectran Corporation Pty Ltd,[74] the New South Wales Court of Appeal held that very similar provisions contained in the Industrial Research and Development Incentives Act 1976 (Cth) immunised documents comparable to the Tatts documents from production on subpoena. The provisions under consideration in Foley included definitions of ‘produce’ and ‘court’ in the same terms as the definitions of those terms in s 10.1.29 of the Act. Although the direct issue in Foley related to a subpoena (and of course a person producing documents in answer to a subpoena is generally required to produce them, in the first instance, to the court itself) the New South Wales Court of Appeal expressed itself in broad language that, in our view, extended to any form of compulsory disclosure of documents, including disclosure by way of inspection of discovered documents. For example, Kirby P (with whom Glass and Priestly JJA agreed) spoke of competing public policies in this area, including the policy of upholding ‘the court’s process including that for the subpoena of relevant documents’.[75] In the end, Kirby P concluded that the secrecy provisions were intended to have the result that information of the protected kind would not be ‘vulnerable to court process’.[76]
[74][1984] 3 NSWLR 156.
[75][1984] 3 NSWLR 156, 162 (emphasis added).
[76]Ibid 163.

This interpretation of s 10.1.31 is also supported by the judgment of Barrett J in Dean-Willcox Re Vinwood Trading Pty Ltd v Commissioner of Taxation.[77] In that case, Barrett J considered the judgment of White J in Javorsky v Commissioner of Taxation.[78] Javorsky is a case to which the primary judge in the present matter also referred.[79] Both Javorsky and Dean-Willcox related to s 16(3) of the Income Tax Assessment Act 1936 (Cth) (‘ITAA’). That sub-section provided:[80]

An officer shall not be required to produce in Court any return, assessment or notice of assessment, or to divulge or communicate to any Court any matter or thing coming under his notice in the performance of his duties as an officer, except when it is necessary to do so for the purpose of carrying into effect the provisions of this Act or of any previous law of the Commonwealth relating to Income Tax.

Barrett J said:[81]
The policy behind s. 16(3) and the clear legislative intention that an officer ‘shall not be required’ to produce to the court documents covered by either limb of the section would obviously be taken into account in framing any order for discovery between parties.

[77][2006] NSWSC 676 (‘Dean-Willcox’).

[78](2005) 189 FLR 228, (2005) 216 ALR 619 (‘Javorsky’).

[79]Reasons [17]-[20], [28].

[80]Emphasis added.

[81]Dean-Willcox [2006] NSWSC 676, [29].

In Javorsky, White J had determined that an order against the Commissioner of Taxation for the discovery of documents and their production for inspection would conflict with s 16(3) of the ITAA. It will be recalled that, in the present case, the primary judge distinguished this aspect of Javorsky. His Honour said that the conclusion reached by White J in Javorsky was based upon a particular provision of the Supreme Court Rules in New South Wales, which required any party who provided a list of documents to produce all of the listed documents at the trial of the proceeding. The primary judge said that there was no such requirement in this State. His Honour said:[82]

There is no equivalent rule in the Supreme Court (General Civil Procedure) Rules 2005 which requires a party who has provided a list or affidavit of documents to produce all of the discovered documents at trial.

[82]Reasons [28].

In our view, this was not a sound basis on which to distinguish Javorsky. The provision of the Supreme Court Rules of New South Wales to which White J referred was more fully described in his Honour’s judgment[83] as a provision under which, where a list of documents is served, the opposite party is deemed to have given a notice to produce, requiring production at the trial of such of the documents specified in the list as are in the custody, possession or control of the party serving the list. But in New South Wales it would always have been open to the party on whom the list was served to waive compliance with this obligation, in whole or in part. It strikes us as highly unlikely that full compliance with the relevant provision of the New South Wales Rules would have been insisted upon in any, much less every, substantial case. In Victoria, the legal and practical position is hardly different. Rule 35.08 of the Supreme Court Rules has at all relevant times provided that a party to a proceeding may serve on any other party a notice requiring that other party to produce the documents mentioned in the notice on any application in, or at the trial of, the proceeding. The rule further provides that, unless the Court otherwise orders, the party on whom the notice is served shall produce on the application or at the trial such of the documents mentioned in the notice as are in that party’s possession, custody or power and which that party does not object to produce on the ground of privilege. So, in the present case, once the order for discovery against the State was made and complied with by the provision of the State’s list of documents, the power to ensure that, subject to any proper claims of privilege or the like, the Tatts documents were produced on an application or at the trial rested entirely in the hands of Intralot, subject only to any order to the contrary which might be made by the Court under r 35.08. In our view, there is no substantial difference between the situation in Victoria and the situation in New South Wales to which White J referred in Javorsky.
[83]Javorsky (2005) 189 FLR 228, [38].

If we are wrong in that last respect, it matters not. Quite apart from the operation of any rules of court, given the extended meanings of ‘court’ and ‘produce’ set out in s 10.1.29(1), we consider that an order for the inspection of documents of the kind referred to in s 10.1.31 would amount to the imposition of a requirement to ‘produce’ those documents ‘in a court’ within the meaning of paragraph (a) of subsection 10.1.31(1). To the extent that the judgment of Wilcox J in Nestle Australia Ltd v Commissioner of Taxation[84] would support a contrary view, we note (as did White J in Javorsky)[85] that this aspect of the judgment of Wilcox J was not addressed in the appeal to the Full Court in Commissioner of Taxation v Nestle Australia Ltd.[86] We consider that the holding of Wilcox J is difficult to reconcile with the abovementioned judgment of the Court of Appeal of New South Wales in Foley.[87] In any event, the ITAA did not include the abovementioned definitions of ‘produce’ and ‘court’ which were contained in the Industrial Research and Development Incentives Act 1976 and which are contained in the Act.
[84](1986) 11 FCR 453, 457.
[85](2005) 189 FLR 228, [37].
[86](1986) 12 FCR 257.
[87][1984] 3 NSWLR 156. Neither Wilcox J nor the Full Court on appeal from Wilcox J (Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257) referred to Foley. Cf Lloyd’s Ships (1986) 11 FCR 287, 290 (Spender J).

An order for the inspection of documents of the kind referred to in s 10.1.31 may also amount to a requirement to ‘disclose’ any protected information in the documents ‘to a court’ for the purposes of paragraph (b) of s 10.1.31(1). However, we need not, and do not, decide that further question.

To sum up on this issue, in the light of the authorities referred to above, s 10.1.30 did not stand in the way of the order for inspection made by the primary judge, but s 10.1.31, on its true construction, did stand in the way of that order. Intralot does not suggest that either of the exceptions stated in s 10.1.31(2) is applicable. Accordingly, subject to the constitutional issue, the order for inspection of the Tatts documents was an order made contrary to s 10.1.31 of the Act and must be set aside.

The answer we would give to issue (ii) is: no.

The exception in s 10.1.30(2)(a)(i)

Strictly speaking, since s 10.1.30(1) is not applicable, there is no occasion to consider whether the primary judge erred in holding that the exception stated in s 10.1.30(2)(a)(i) had not been shown by Intralot to be applicable. That question no longer arises. We would only say that, had s 10.1.30(1) been the applicable section, nothing that has been raised by Intralot would have caused us to doubt the correctness of the primary judge’s determination that the burden of showing the applicability of the exception rested on Intralot and that Intralot had failed to discharge that burden. Intralot’s allegations in the underlying proceeding do not include any allegations to the effect that the provisions of the Act relating to the issue of public lottery licences or any other provisions of the Act were breached by any public official. Intralot’s claim is for alleged breach of contract and for alleged breach of the Fair Trading Act 1999. Providing inspection of the Tatts documents in the underlying proceeding could not amount to a disclosure made in the performance of, or for the purpose of performing or enabling someone else to perform, a function under a gaming Act or gaming regulations.

In any event, the answer we would give to issue (iii) is: does not arise.

The applicability of s 10.1.31

This issue has been fully covered by what we have said above in relation to the second issue. For the reasons there set out, subject to the constitutional issue, s 10.1.31 does preclude a court from ordering the inspection of discovered documents of the kind to which the section applies. Thus our answer to issue (iv) is: yes.

The constitutional issue

The last issue is whether the relevant secrecy provisions are rendered ineffective because they were not passed in accordance with the ‘manner and form’ provisions of s 85(5) of the Constitution Act 1975. The fact that we differ somewhat from the primary judge in relation to the construction of ss 10.1.30 and 10.1.31 of the Act, as indicated above, does not affect the substance of the present question.

So far as principally relevant, s 85 of the Constitution Act 1975 reads:

Powers and jurisdiction of the Court
(1)Subject to this Act the Court shall have jurisdiction in or in relation to Victoria its dependencies and the areas adjacent thereto in all cases whatsoever and shall be the superior Court of Victoria with unlimited jurisdiction.

… [repealed]
(3)The Court has and may exercise such jurisdiction (whether original or appellate) and such powers and authorities as it had immediately before the commencement of the Supreme Court Act 1986.
(4)This Act does not limit or affect the power of the Parliament to confer additional jurisdiction or powers on the Court.
(5)A provision of an Act, other than a provision which directly repeals or directly amends any part of this section, is not to be taken to repeal, alter or vary this section unless —
(a)the Act expressly refers to this section in, or in relation to, that provision and expressly, and not merely by implication, states an intention to repeal, alter or vary this section; and
(b)the member of the Parliament who introduces the Bill for the Act or, if the provision is inserted in the Act by another Act, the Bill for that other Act, or a person acting on his or her behalf, makes a statement to the Council or the Assembly, as the case requires, of the reasons for repealing, altering or varying this section; and
(c)the statement is so made —
(i) during the member's second reading speech; or
(ii)after not less than 24 hours' notice is given of the intention to make the statement but before the third reading of the Bill; or
(iii)with the leave of the Council or the Assembly, as the case requires, at any time before the third reading of the Bill.

(6)A provision of a Bill which excludes or restricts, or purports to exclude or restrict, judicial review by the Court of a decision of another court, tribunal, body or person is to be taken to repeal, alter or vary this section and to be of no effect unless the requirements of subsection (5) are satisfied.
(7)A provision of an Act which creates, or purports to create, a summary offence is not to be taken, on that account, to repeal, alter or vary this section.
(8)A provision of an Act that confers jurisdiction on a court, tribunal, body or person which would otherwise be exercisable by the Supreme Court, or which augments any such jurisdiction conferred on a court, tribunal, body or person, does not exclude the jurisdiction of the Supreme Court except as provided in subsection (5).

Subsection 85(3) refers to the commencement of the Supreme Court Act 1986. That occurred on 1 January 1987.

A leading authority on the interpretation and application of s 85 of the Constitution Act 1975 is the judgment of the Court of Appeal in Dagi.[88] Five judges sat on the appeal in Dagi. The judges who comprised the majority were Brooking, Tadgell and Phillips JJA. Dissenting judgments were delivered by Winneke P and Hayne JA. However, the main point on which the majority differed from the minority was a point of construction of the Public Prosecutions Act 1994. There was no significant difference between the members of the Court in relation to the way in which s 85(5) of the Constitution Act is to be taken to operate.
[88][1996] 2 VR 117.

In this regard, Brooking JA observed that s 85(5) operates on provisions which would, but for the existence of s 85(5), repeal, alter or vary s 85 otherwise than ‘directly’. His Honour further observed that ‘directly’ evidently does not mean textually, but expressly.[89] In consequence, his Honour said, s 85(5) operates on provisions which would, but for its enactment, repeal or amend s 85 by implication, the implication arising from inconsistency between the provision under consideration (‘the new provision’) and s 85.[90] The manner of operation of s 85(5) is, according to his Honour, to render the new provision ineffective, rather than requiring it to be read down, but, one way or another, his Honour said, the result is achieved that, unless the requirements of paras (a) to (c) are satisfied, the implied repeal or amendment of s 85 is not possible. The other members of the Court apparently understood the operation of s 85(5) in much the same way.[91]
[89]Cf John Waugh, ‘The Victorian Government and the Jurisdiction of the Supreme Court’ (1996) 19(2) UNSW Law Journal 409, 415–416, especially at footnote 29.
[90]His Honour here cited Kariapper v Wijesinha [1968] AC 717, 741–4.
[91]Dagi [1996] 2 VR 117, 121–122 (Winneke P), 158 (Tadgell JA), 184–187 (Phillips JA), 207-208 (Hayne JA).

The ‘new provision’ under consideration in Dagi was s 46 of the Public Prosecutions Act 1994 (as in force in 1995). In summary, that section provided that only the Attorney-General might apply to a court for punishment of a person for a contempt of court that involved an interference with the due administration of justice, either in relation to a pending proceeding or more generally. Certain exceptions were stated in the section. In effect, the Parliament had acknowledged that s 46 was inconsistent with s 85 of the Constitution Act 1975, in that s 46 was accompanied by another section of the Public Prosecutions Act 1994, namely s 49, which provided, in part, that it was the intention of s 49 to alter or vary s 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from entertaining any application by a person other than the Attorney-General for punishment of a person for a contempt of court that involved an interference with the due administration of justice, either in relation to a pending proceeding or more generally. However, it was argued for the respondents in Dagi that s 46 should be interpreted narrowly, such that it would not, in any event, operate in relation to contempts committed in respect of civil proceedings and, therefore, that it would not, in any event, stand in the way of the respondents’ (private) charge of contempt against the appellant. There were also disputes between the parties in Dagi as to whether s 49 of the Public Prosecutions Act 1994 amounted to sufficient compliance with s 85(5)(a) of the Constitution Act and as to whether there had been compliance with s 85(5)(b) by means of the statement that had been made to the Parliament by the Attorney-General purporting to contain the reasons for repealing, altering or varying s 85.

In relation to the question of construction of s 46 of the Public Prosecutions Act 1994, the majority (Brooking, Tadgell and Phillips JJA) held that s 46 applied to all kinds of contempt, both civil and criminal, and in respect of both civil and criminal proceedings, subject only to the exceptions stated in the section. Winneke P, dissenting, held that s 46 was confined to contempts in respect of criminal proceedings. Hayne JA held that s 46 dealt only with public prosecutions for contempt and only by identifying which office holder might bring such proceedings. However, each of the judges agreed that s 46 indirectly repealed, altered or varied s 85 of the Constitution Act 1975 because it deprived the Supreme Court of the power, which it formerly possessed, to deal with all cases of alleged contempt on the application of any person. On the other hand, contrary to the decision at first instance, all members of the Court were agreed that there had been sufficient compliance with the requirements of s 85(5) of the Constitution Act 1975. As a result, the provisions of s 46 of the Public Prosecutions Act 1994 were held not to be ineffective.

In the present case, the primary judge made particular reference to the judgment of Phillips JA in Dagi, insofar as Phillips JA had considered the general structure and operation of s 85 of the Constitution Act 1975. The primary judge summarised in the following fashion what Phillips JA had said in this regard:[92]

(1)‘any attempt to alter a subsection of s 85 will attract the requirements of sub-s (5) unless the alteration be achieved by a provision “which directly repeals or directly amends” s 85’.[93]
(2)In the absence of direct repeal or amendment to s 85, s 85(5) provides on its proper interpretation that the alteration ‘will be ineffective’ unless the ‘manner and form requirements’ of s 85(5) are complied with.[94]
(3)A provision in an Act will be taken to ‘alter or vary’ the Court’s jurisdiction, powers or authorities ‘whenever an Act purports to modify or restrict what are otherwise the jurisdiction, powers and authorities of this Court.’[95] Later, his Honour spoke in terms of a provision which ‘operates as a limitation upon the powers of this Court’ as attracting the need for compliance with the manner and form requirements of s 85(5).[96]

[92]Reasons [39]. Footnotes adjusted and renumbered.

[93]Dagi [1996] 2 VR 117, 185.

[94]Ibid 185-6. See also 149-150 (Brooking JA), 158 (Tadgell JA).

[95]Ibid 187 (emphasis added).

[96]Ibid (emphasis added).

Intralot contended before the primary judge that Division 6 implicitly amended s 85(3) of the Constitution Act 1975 by limiting the Court’s ‘powers’ or ‘authorities’ concerning discovery, inspection and production of documents as they stood immediately before the commencement of the Supreme Court Act 1986 on 1 January 1987.[97] Intralot did not suggest to the primary judge, and still does not suggest, that Division 6 limits the ‘jurisdiction’ of the Court for the purposes of s 85(1) or (3) of the Constitution Act 1975. The State contended before his Honour that s 85 was irrelevant, as it said nothing about the plenary power of the State to prohibit the production of documents or information as it saw fit.[98] The primary judge did not accept the State’s contention, giving reasons which his Honour divided into six parts, as follows.
[97]Reasons [32].
[98]Ibid.

First, his Honour observed that, before the commencement of the Supreme Court Act 1986, the relevant powers and authorities of the Court with respect to discovery, inspection and production were conferred by the Supreme Court Act 1958 and the General Rules of Procedure in Civil Proceedings 1985 (‘the 1985 Rules’).[99]
[99]Ibid [33].

Second, his Honour noted[100] that s 25 of the Supreme Court Act 1958 gave the judges of the Court power to make Rules of Court for specified matters, including:

(i)Generally for regulating any matters relating to the practice and procedure of the Court or to the duties of the officers thereof or to the costs of proceedings therein.

[100]Ibid [34].

Third, his Honour observed that discovery, inspection and production of relevant documents are clearly matters relating to the practice and procedure of the Court.[101]
[101]Ibid [35].

Fourth, the primary judge noted that, pursuant to their rule-making power under s 25(i) of the Supreme Court Act 1958, the judges of this Court made the 1985 Rules, which gave the Court particular powers in relation to discovery, inspection and production of documents, being powers which his Honour enumerated in eight subparagraphs by reference to eight separate rules which were contained in Order 31 of the 1985 Rules.[102]
[102]Ibid [36].

Fifth, the primary judge observed that the evidence established that the Tatts documents were relevant to the issues in the proceeding. He said that no claim of privilege of any kind was made in respect of them.[103] He said that the sole objection to production was that the Tatts documents are ‘subject to the duty of confidentiality under s 10.1.30’ of the Act.[104]
[103]With respect, this may be a matter of mere nomenclature: see Lloyd’s Ships (1986) 11 FCR 287, 291–292. And see further [104] below.
[104]Reasons [37].

Sixth, his Honour summarised his earlier holdings in relation to the interpretation of s 10.1.30(1) and s 10.1.31 and then expressed the opinion that the prohibitions arising from those provisions were ineffective in relation to the Supreme Court of Victoria because:[105]

(1)they modify, restrict or limit the powers and authorities of this Court under the 1985 Rules in connection with discovery, inspection and production of documents. In particular, the prohibitions limit this Court’s powers to order production of relevant documents, and to order inspection of documents where a notice to produce was not complied with; and
(2)the ‘manner and form’ requirements in s 85(5)(a), (b) and (c) of the Constitution have not been complied with. In that regard, it is clear that s 85(5)(a) was not complied with, and that is enough. In comparison, s 11.1.7 of the Act specifically invokes s 85 with respect to s 3.2.5.

[105]Ibid [38].

His Honour expressed the view that his conclusion was consistent with the reasons of Phillips JA in Dagi.

The primary judge made orders requiring the State to provide inspection of the Tatts documents. Before inspection was to take place, however, Tattersalls was to be given an opportunity to make submissions to the court as to why inspection by Intralot should not be allowed or should be subject to any limitations, for example because of commercial confidentiality in a trade rival context.[106] In that regard his Honour noted that Tattersalls had been informed of the existence of the application before the Court but had made no application to intervene. Intralot had approached Tattersalls seeking its consent under s 10.1.32(a) of the Act to the disclosure of its documents. Tattersalls had advised that it was not in a position to consent without having reviewed the relevant documents, which it was not prepared to do unless Intralot indemnified it for its costs. In those circumstances, Intralot deferred its request that Tattersalls consent until the issues raised in the application were determined by the Court.[107]
[106]Here, his Honour cited Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34.
[107]Reasons [41].

In the application for leave to appeal, the State’s proposed grounds of appeal were expressed as follows:

The primary Judge erred in law in finding that ss 10.1.30 and 10.1.31 of [the Act] were contrary s 85 of the Constitution Act, in that his Honour:
(a)equated the jurisdiction, power and authorities of the Supreme Court protected by s 85 with the form that the rules of Court took at the relevant date;
(b)erred in holding that ss 10.1.30 and 10.1.31 limit this Court’s powers; and
(c)failed to ask whether ss 10.1.30 and 10.1.31 could be interpreted in a manner that was not contrary to s 85 of the Constitution Act.
See Reasons below, [38].

It is not necessary for us to consider ground (c) as this was abandoned by the State during the course of the hearing before us.

As indicated above, it was common ground between the parties before the primary judge, and it remains common ground, that Division 6 does not limit the ‘jurisdiction’, as distinct from the ‘powers’ and ‘authorities’, of the Court. And, despite any appearance to the contrary that may be gained from the language of ground (a), the State, correctly, does not suggest that the primary judge departed from this joint position of the parties.

In Dagi, several of the judges observed that the references in s 85(3) to the Court’s ‘powers’ and ‘authorities’ serve to expand the area delineated by the reference therein to the Court’s ‘jurisdiction’.[108] The matter was considered in some depth by Tadgell JA.[109] His Honour said that the device of the conferral by statute or letters patent upon a colonial superior court of designated ‘jurisdiction’, ‘powers’ and ‘authorities’ was established long before 1875; and that the use of those words was no mere tautology. His Honour continued:[110]

Jurisdiction without judicial power, or power without authority, could not have established a superior court.

His Honour went on to observe that it was very plain that when a court punishes for contempt it is exercising what is essentially judicial power.[111] After referring extensively to earlier cases decided mainly in the area of contempt, Tadgell J summed up as follows:[112]
In summary, the Supreme Court has authority, in the sense of jurisdiction, to decide cases; and it has authority in the sense that it acts authoritatively for the purpose of establishing and maintaining the law. Authority, in the sense of jurisdiction, is ineffective without authoritativeness; and s. 85(3) of the Constitution Act is in my opinion designed to vouchsafe both.

[108]Dagi [1996] 2 VR 117, 150 (Brooking JA), 154–157 (Tadgell JA), 187 (Phillips JA), 207 (Hayne JA).

[109]Dagi [1996] 2 VR 117, 154–157.

[110]Ibid 154.

[111]Ibid.

[112]Ibid 156–157.

The State submits,[113] and we agree, that each of the words ‘jurisdiction’, ‘powers’ and ‘authorities’ in s 85(3) takes it shade of meaning from their collocation and from the overarching text of s 85(1). Aptly, the State cites in this regard the following observation of Gordon J in Sea Shepherd Australia Ltd v Federal Commissioner of Taxation:[114]

The task is not to pull apart a provision, or composite phrase within a provision, into its constituent words, select one meaning, divorced from the context in which it appears, and then reassemble the provision…

As the State also points out, ‘jurisdiction’ and ‘power’ are related concepts[115] and have been collocated in the present context since at least 1874.[116] It can also be said that jurisdiction and authority are related concepts. In Truong v The Queen[117] Kirby J referred, without adverse comment, to a submission that the primary ‘authority’ of the Supreme Court to adjudicate upon a criminal trial is derived from s 85 of the Constitution Act 1975, and to a related general submission that ‘jurisdiction’ is ‘determined by authority’.[118] The judgment of Kirby J was a dissenting one, but not in relation to the point his Honour was here considering. His Honour’s observations are treated by Greg Taylor[119] as illustrating the proposition that, for the purposes of s 85(3) of the Constitution Act 1975, ‘authorities’ may not be a concept that differs much from ‘jurisdiction’.

[113]State’s written case dated 16 September 2015, [11].

[114](2013) 212 FCR 252, [34].

[115]Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559, [64]–[65] (Gleeson CJ, Gaudron and Gummow JJ).

[116]Judicature Act 1874, s 2; Supreme Court Act 1890, s 18; Supreme Court Act 1915, s 15; Supreme Court Act 1928, s 15; Supreme Court Act 1958, s 15(1).

[117](2004) 223 CLR 122, 180 [168].

[118]Ibid.

[119]Greg Taylor, The Constitution of Victoria (The Federation Press, 2006), 505.

Since 1975, the present context has been a constitutional one. It was in that year that the fundamental provisions relating to the Supreme Court were transferred from the Supreme Court Act 1958 to the Constitution Act 1975. Moreover, those fundamental provisions were entrenched, in that they could thereafter be amended only with absolute majorities in both Houses of Parliament.[120] They have since been amended from time to time, but they have also been further entrenched, namely by s 85(5) itself, which was inserted in 1991.[121]
[120]John Waugh, above n 89, 416.
[121]G Taylor, above n 119, 496-509.

For many years after 1975 there was a distinct tendency in the drafting of Victorian statutes to include s 85 clauses out of over-abundant caution.[122] Sometimes, there was a failure to distinguish appropriately between a change to the substantive law to be administered by the Court and a change to the Court’s own jurisdiction, powers and authorities.[123] As Taylor points out,[124] the Court’s jurisdiction is removed from it only if some portion of the judicial power of the State of Victoria is taken away from it, because in that case its jurisdiction is no longer unlimited. An example is a provision conferring on a tribunal exclusive jurisdiction to hear particular kinds of disputes. On the other hand, as the learned author says, ‘[t]he Court’s jurisdiction does not…change if the law changes and requires a different outcome as a result of the exercise of a jurisdiction that remains in the Court’. In remarks with which we completely agree, the learned author continues:[125]

For the same reason, a statute that denies compensation as a result of the taking of a particular step does not interfere with the Court’s jurisdiction, but rather with the substantive law. Even clearer is a case in which a statute affects the rights or duties of particular persons, or the outcome of particular legal proceedings: such action affects at most the outcome of the exercise of the Court’s jurisdiction, etc, but not the existence of the jurisdiction itself, which is what s 85 protects.[126] All this is because s 85 does not attempt the impossible task of preventing alterations to the substantive law, but rather that of ensuring that the substantive law, whatever it is, will as a general rule fall within the jurisdiction of the Court.

[122]Ibid 503.

[123]Ibid 503–505; Dagi [1996] 2 VR 117, 203 (Hayne JA).

[124]G Taylor, above n 119, 505.

[125]Ibid 505. Footnotes renumbered.

[126]Collingwood Corporation v Victoria (No 2) [1994] 1 VR 652, 666–669; [1994] 5 Leg Rep SL 4. In the latter decision the High Court of Australia, refusing leave to appeal, specifically stated that no amendment of s 85 was involved in the statute under challenge.

Taylor describes the interpretation of ‘powers and authorities’ in s 85(3) as being ‘slightly more difficult’. He observes, correctly, that each of those words raises a question of degree. He points out that there is no recognised list of ‘powers’ of a court. On the other hand, as the learned author also notes,[127] in Collingwood Corporation v Victoria (No 2)[128] this Court held that a statute which took away the right to compensation in particular instances did not interfere with the Court’s powers. Taylor suggests, and once again we agree, that the existence of ‘powers and authorities’ of the Court is a different thing from the substantive law which gives rise to those ‘powers and authorities’, in the same way as there is a difference between jurisdiction and substantive law. The same holds even if the change is dispositive of an existing cause.[129] As Taylor further comments, the tail must not wag the dog; the ‘powers and authorities’ of the court are the means by which the substantive law is enforced, rather than the substantive law itself.
[127]G Taylor, above n 119, 505.
[128][1994] 1 VR 652, 667–669. See also Dagi [1996] 2 VR 117, 203 (Hayne JA).
[129]Australian Education Union v Fair Work Australia (2012) 246 CLR 117, [49] (French CJ, Crennan and Kiefel JJ), cited by the State in paragraph 15 of the State’s written case dated 16 September 2015.

Taylor proceeds to discuss a range of examples of actual and possible statutory provisions as against s 85 of the Constitution Act 1975. He then comments:[130]

These examples show us that what constitutes ‘powers’ or ‘authorities’ of the Court is in the end a question of the level of generality at which the things it can do are described. A higher level of generality than the postulation of a power ‘to award damages for common-law wrongs’ would be a power ‘to provide compensation for injuries’, and it would be easy enough to consider further variations on this theme. A judgment must be made in each case about whether a statute so greatly affects the court’s power that it removes one of its ‘powers and authorities’. Most statutes will not.

Again, we can only agree.

[130]G Taylor, above n 119, 507.

Having regard to these principles, s 10.1.31 of the Act should not be regarded as constitutionally ineffective. And even if, contrary to our opinion, s 10.1.30 should be interpreted as being applicable in a court context, s 10.1.30 should not be regarded as constitutionally ineffective either.

We accept that the processes of discovery, inspection and production of documents can be very important in litigation.[131] However, we do not accept that the sections in question relevantly alter or limit this Court’s ‘powers’ or ‘authorities’ for the purposes of s 85(5) of the Constitution Act 1975.
[131]Sanko Steamship Co Ltd v Sumitomo Australia Ltd (1992) 37 FCR 353, 360; Potts v Dennis Jones & Co Ltd (1995) 58 FCR 61, 70–71; Smith v Victoria Police (2012) 36 VR 97, 108 [42].

It is conceded by Intralot that, insofar as the sections in question affect the discovery, inspection or production of the Tatts documents in this case, they do not touch the ‘jurisdiction’ of the Court within the meaning of s 85 of the Constitution Act 1975. Further, as explained above, the Court’s functions in relation to discovery, inspection and production of documents form no part of the Court’s inherent jurisdiction or inherent powers. That immediately distinguishes this case from Dagi,[132] in which the inherent jurisdiction or power of this Court to punish for contempt was centrally involved. In any event, Dagi was fundamentally different. The impugned section, s 46 of the Public Prosecutions Act 1994, went to the heart of this Court’s jurisdiction, powers and authorities. According to Brooking JA, s 46 clearly deprived the court of jurisdiction to hear and determine the plaintiff’s application to have BHP punished for contempt. In addition, it diminished the ‘powers and authorities’ of the Supreme Court. Other members of the Court were of the view that it was unnecessary to decide whether the jurisdiction of the Court, as well as its powers and authorities, were affected. But each member of the Court emphasised the broad and fundamental nature of the change wrought by s 46. Thus, Winneke P said that, on BHP’s construction of s 46 (which construction was adopted by the majority of the Court), the section:[133]
[132][1996] 2 VR 117.
[133]Dagi [1996] 2 VR 117, 135.

would not only cut across the procedures set out in the rules of court but would severely restrict … the court’s powers to control its own processes. The power of a superior court to punish for contempt is so important to its ability to function that it should not be regarded as having been ousted or restricted by statute in the absence of clear and specific words to that effect …

Tadgell JA said:[134]
To deprive the Supreme Court of the opportunity of dealing certainly and immediately with a case of contempt of the Supreme Court, or of any other court in the State, at the instance of a person whom the court is bound, by dealing with the case, to protect is in my opinion unquestionably to deplete its authority.

Hayne JA said that the change would take away from the Court ‘a power or a jurisdiction (and it matters not which) inherent in a superior court of record’.[135] Indeed, his Honour said that the instant case was one ‘which may relate to what, if any, restraints exist by reference to the fundamental structure of the system of government’.[136] His Honour described the contention of BHP as being that ‘by general words Parliament has affected the inherent powers of what, on at least one view, may be seen as a fundamental element in the system of governance of the State’.[137] Further, Hayne JA commented that the absence of any reference by the Attorney-General, when introducing the relevant Bill into the House, to the taking away of the right that a private individual had long had to apply for the punishment of a person for contempt of court was ‘startling indeed’.[138]

[134]Ibid 157.

[135]Ibid 204.

[136]Ibid 205.

[137]Ibid.

[138]Ibid 202.

There is nothing startling about ss 10.1.30 and 10.1.31. They do no more than create a single, defined category of documents which, subject to certain stated exceptions, will be exempt from inspection or production (though not from discovery) in legal proceedings. In each case, the information to be kept confidential is information relating to the affairs of private third parties. Often, that information will have been obtained as part of sensitive processes relating to applications for

gaming licences. Provisions of the Act such as s 5.3.4 indicate that, often, the information will be highly personal and of commercial sensitivity.

The primary judge declined to apply the label ‘privilege’ to the State’s claim in respect of the Tatts documents, but it is not uncommon to see that word used in similar circumstances.[139] Alternatively, it may be more precise to describe the case as one of statutory immunity.[140]
[139]Lloyd’s Ships (1996) 11 FCR 287, 291–292 (‘statutory privileges’); Suzanne B McNicol, Law of Privilege (The Law Book Company Ltd, 1992) 3 (‘statutory privilege’ used to describe exemptions for marital communications, clergy and penitent communications and doctor-patient communications). Another example is parliamentary privilege.
[140]See, for eg, Pooraka Holdings Pty Ltd v Participation Nominees Pty Ltd (1989) 90 ALR 49, 55-56 (King CJ). The word ‘immunity’ is often adopted where the person or body in question has no ability to waive the confidentiality erected by the statutory provisions: see Suzanne B McNicol, above n 139, 3, 433.

The function of the Supreme Court in relation to discovery, inspection and production in this case is no different from what it would be in any other case where privilege or immunity is claimed or otherwise arises. In each such case, the Court must consider and determine whether the claim or immunity is made out. If it is, the Court must give effect to it. Nothing more than that is involved in the present case.

The provisions in question are hardly unprecedented.[141] At the hearing, we invited the parties to furnish us with a list of comparable provisions that were to be found in the Victorian statute book as at the time relevant for s 85(3), namely immediately before 1 January 1987. As a result, we have been furnished with a list that shows a substantial number of similar provisions.[142]
[141]See, generally, Condon v Pompano Pty Ltd (2013) 252 CLR 38, 47 [5] (French CJ).
[142]The list identifies that there were at least 25 statutory confidentiality provisions of various forms in force as at 31 December 1986, including, for example, Business Franchise (Tobacco) Act 1974, s 5; Legal Aid Commission Act 1978, s 43; Evidence (Commissions) Act 1982, s 4; Food Act 1984, s 54. Additional examples are likely to exist including, for example, Equal Opportunity Act 1984, s 15.

In Dagi,[143] as indicated above, Tadgell JA seemed to equate ‘powers’ in s 85(3) of the Constitution Act 1975 with the concept of ‘judicial power’. In Nicholas v The Queen,[144] Brennan CJ said:
[143]Dagi [1996] 2 VR 117, 154.
[144](1998) 193 CLR 173, 188–189 [23]–[24]. Footnotes renumbered. See also at 275-276 [242]-[243] (Hayne J). See also Kuczborski v Queensland (2014) 314 ALR 528, 581-582 [239]-[244] (Crennan, Kiefel, Gageler and Keane JJ); Rich v The Queen (2014) 312 ALR 429, [303]-[317].

The judicial power of a court is defined by the matters in which jurisdiction has been conferred upon it. The conferral of jurisdiction prima facie carries the power to do whatever is necessary or convenient to effect its exercise. The practice and procedure of a court may be prescribed by the court in exercise of its implied power to do what is necessary for the exercise of its jurisdiction[145] but subject to overriding legislative provision governing that practice or procedure. The rules of evidence have traditionally been recognised as being an appropriate subject of statutory prescription. A law prescribing a rule of evidence does not impair the curial function of finding facts, applying the law or exercising any available discretion in making the judgment or order which is the end and purpose of the exercise of judicial power. …
[145]See Grassby v The Queen (1989) 168 CLR 1, 16.
In The Commonwealth v Melbourne Harbor Trust Commissioners,[146] Knox CJ, Gavin Duffy and Starke JJ said:
A law does not usurp judicial power because it regulates the method or burden of proving facts.

And in Williamson v Ah On,[147] Higgins J said that ‘the evidence by which an offence may be proved is a matter of mere procedure’. He added:
The argument that it is a usurpation of the judicial power of the Commonwealth if Parliament prescribed what evidence may or may not be used in legal proceedings as to offences created or provisions made by Parliament under its legitimate powers is, to my mind, destitute of foundation.

[146](1922) 31 CLR 1, 12.

[147](1926) 39 CLR 95, 122.

To the same effect, and even closer to the present case, is Northern Territory v GPAO.[148] That was an appeal to the High Court from a decision made by the Family Court of Australia, sitting in the Northern Territory, in a case relating to the custody of a child. The case was being heard pursuant to the general provisions of the Family Law Act 1975 (Cth), including the provision that, in such a case, the best interests of the child must be the paramount consideration. The Family Law Rules 1984 made provision for the issue of subpoenas. The Evidence Act 1995 (Cth) supplied the law of evidence to be applied in federal courts including the Family Court. Section 97(3) of the Community Welfare Act 1983 (NT) provided: ‘a person who is, or has been, an authorised person shall not, except for the purposes of this Act, be required to – (a) produce in a court a document that has come into his possession or under his control; or (b) disclose or communicate to a court any matter or thing that has come under his notice in the performance of his duties or functions under this Act’. On the application of the father of the child, the Registrar of the Family Court at Darwin issued a subpoena to the manager of the Child and Family Protective Services unit of the Northern Territory Health Services Department, who was ‘an authorised person’ for the purposes of s 97(3) of the Community Welfare Act 1983 (NT), requiring him to produce to the Court all files and records in relation to the child. By reference to s 97(3) of the Community Welfare Act 1983 (NT), the manager objected to the production of the documents pursuant to the subpoena. The Family Court rejected his objection, but the High Court (Kirby J dissenting) upheld it.[149] McHugh and Callinan JJ said:[150]

In the absence of a clear provision to the contrary, a law of the Parliament conferring jurisdiction or powers on a federal court does not authorise conduct ‘which is specifically prohibited and rendered criminal by the ordinary criminal law of the State or Territory in which the act would be done’.[151]
Order 28, r 1 of the Family Law Rules, set out earlier, provides that the Court may compel production of any document by issue of a subpoena. Neither the Rules nor the Act, however, make mention of a power to compel production of documents which are the subject of a ‘public interest’ privilege deriving from some other source, such as another enactment, State, federal or territorial, or the common law. Section 97(3) of the Community Welfare Act is clearly intended to protect the wider public interest in so far as it shields sensitive documents from the usual processes by which such documents may be made public. The general power conferred by O 28, r 1 of the Family Law Rules should not be construed as authorising the production of documents protected by a specific and narrowly directed provision such as s 97(3), which plainly intends to create an exception to long-established general principles about the procedures governing legal proceedings.
The Family Law Rules give no indication that they were intended to provide exhaustively with respect to the compelling of evidence. There is nothing in O 28, or anywhere else in the Rules or in the Act, that indicates that the power conferred by O 28, r 1 should be construed so that it overcomes the many qualifications and exceptions that the law has developed in relation to the production of documents in response to the issue of subpoenas. If O 28, r 1 was intended to overcome exceptions to the production of documents, such as legal professional privilege, the privilege against self-incrimination and public interest immunity, one would expect an express statement to that effect. To make express provision for such purposes would have been a simple matter. Whether, in the absence of Parliamentary authority, Rules of Court could achieve this end may be debateable.[152] It is enough to say, however, that O 28, r 1 contains nothing that indicates an intention to overcome public interest type protections of which s 97(3) is merely one of many examples.
Furthermore, the so-called ‘paramountcy principle’, referred to earlier in these reasons, and the fact that the Family Court exercises functions in relation to child welfare provide no ground for concluding that O 28, r 1 is intended to overturn the usual exceptions to the production or admissibility of evidence. The ‘paramountcy principle’ is a principle to be applied when the evidence is complete. Except where statute provides to the contrary, it is not an injunction to disregard the rules concerning the production or admissibility of evidence.
Finally, the provisions of the Evidence Act provide no ground for concluding that O 28, r 1 overturns the protection provided by s 97(3). As Gleeson CJ and Gummow J point out in their judgment, that Act does not deal with the obligations of a person to produce documents on subpoena or the grant of leave by a court to inspect or make use of documents produced on subpoena.

[148](1999) 196 CLR 553.

[149]Ibid [17], [84]-[85] (Gleeson CJ and Gummow J), [139]-[145] (Gaudron J), [195]-[199] (McHugh and Callinan JJ).

[150]Ibid [195]-[199]. Footnotes renumbered.

[151]P v P (1994) 181 CLR 583, 602 (Mason CJ, Deane, Toohey and Gaudron JJ).

[152]Cf Ex parte Grinham; Re Sneddon (1959) 61 SR (NSW) 862.

Sections 10.1.30 and 10.1.31 of the Act merely affect the substantive law to be applied by the court where they arise for consideration. They do not affect the general powers of the courts with respect to discovery, inspection or production of documents. However, it will be recalled that the primary judge made specific reference to a number of the rules of the Supreme Court relating to discovery and inspection as in force in 1985. At the hearing before us, in the end, both sides were agreed that the 1985 Rules relating to discovery, inspection and production were not to be regarded as frozen in time for present purposes. Indeed, the powers of the Court in these respects, as expressed in the Rules, have actually expanded since 1985, so as to include discovery before the commencement of proceedings[153] and discovery against non-parties.[154] By contrast, since 1 January 2011, the Rules have provided that discovery of documents pursuant to Order 29 is limited in the ways specified in r 29.01.1(3).[155] Many other changes and refinements to the Rules relating to discovery and inspection, and to the Rules generally, have occurred before and after 1 January 1987.[156] The Rules of Court have been made and amended from time to time by the judges as subordinate legislation pursuant to various rule making powers, principally those conferred by s 25 of the Supreme Court Act 1986 (as amended from time to time) and its predecessors. In our view, nothing in s 85 of the Constitution Act 1975 inhibits in any way the amendment from time to time of the Rules of the Supreme Court. This aspect of the primary judge’s judgment was the subject of paragraph (a) of the notice of appeal, but, on the view we take, nothing turns on his Honour’s reference to the 1985 Rules.
[153]See now Supreme Court (General Civil Procedure) Rules 2015, rr 32.03 – 32.05.
[154]See now ibid r 32.07
[155]The principles stated in the Civil Procedure Act 2010 also bear upon the exercise of the Court’s powers in relation to discovery and inspection. Further, the Rules of the Supreme Court have themselves always provided for the recognition of privilege from production: see the 1985 Rules, r 31.14; and see the Supreme Court (General Civil Procedure) Rules 2015, r 29.10(4)(a). See also, in relation to the availability of claims of privilege in the context of preliminary discovery and discovery from non-parties, r 32.02 which provides: ‘An order under this Order shall not operate to require the person against whom the order is made to produce any document or answer any question which, on the ground of privilege, that person is not required to produce or answer’.
[156]See Weir v Greening [1957] VR 296, 298 (Sholl J); Herald and Weekly Times Ltd v Popovic (2003) 9 VR 1, 100-101 [492]-[494] (Warren AJA, as the Chief Justice then was).

Our answer to issue (v) is: no.

Conclusion

As a matter of construction, s 10.1.30 of the Act does not preclude a court from ordering inspection of documents to which s 10.1.30 applies, but s 10.1.31 of the Act does preclude a court from ordering inspection of documents to which s 10.1.31 applies. Neither s 10.1.30 nor s 10.1.31, on any view of their construction, is constitutionally ineffective. However, there remain factual issues to be considered by the primary judge as indicated above.

The application for leave to appeal will be granted, the appeal will be allowed and Intralot’s application for inspection of the Tatts documents will be remitted to the primary judge for reconsideration in accordance with law. We will hear the parties on the question of costs.

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[2015] VSCA 358

18 December 2015