State of Victoria v Orman

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0114

STATE OF VICTORIA	Applicant
v
FARUK ORMAN	First Respondent
AND
NICOLA MAREE GOBBO	Second Respondent

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JUDGES:	McLEISH, KENNEDY and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 August 2024
DATE OF JUDGMENT:	3 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 190
JUDGMENT APPEALED FROM:	Orman v State of Victoria (Supreme Court of Victoria, Richards J, 18 October 2023)

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EVIDENCE – Public interest immunity – Public interest immunity claim supported by confidential affidavit and submissions – Judge directed legal representatives of opposing party be given affidavit and submissions on provision of non-disclosure undertakings – Whether judge erred by failing to treat confidential affidavit and submissions as entitled to same level of protection as subject material – Material disclosed in confidential affidavit and submissions reveals subject material, including through ‘jigsaw’ effect – Disclosure of confidential affidavit and submissions would destroy or significantly impair public interest in confidentiality – Leave to appeal granted – Appeal allowed.

PRACTICE AND PROCEDURE – Public interest immunity – Process for determination of public interest immunity claims – Appointment of contradictors – Disclosure of confidential submissions and supporting evidence – Disclosure of documents subject to confidentiality claims only after inspection by judge – Goussis v The King [2022] VSCA 255, considered.

Commonwealth v Northern Land Council (1993) 176 CLR 604, referred to.

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Counsel
Applicant:		Ms S Maharaj KC with Ms M Pekevska and Mr S Frauenfelder
First Respondent:		Mr JT Rush KC with Ms S Gold
Second Respondent:		No appearance
Solicitors
Applicant:	Corrs Chambers Westgarth
First Respondent:	Robinson Gill
Second Respondent:	No appearance

MCLEISH JA
KENNEDY JA
MACAULAY JA:

In a civil action against the State of Victoria (the applicant) which is yet to go to trial, Faruk Orman (the first respondent) seeks unredacted copies of documents which the State has discovered. The State resists doing so, on grounds including relevance, public interest immunity and statutory secrecy. The second respondent, Nicola Gobbo, supports the first respondent’s position.
In preparation for a hearing of the issue, a judge in the Trial Division made orders, over the State’s objection, that an affidavit and written submissions, over which the State claimed confidentiality, were to be provided to the respondents’ legal representatives, upon provision of appropriate non-disclosure undertakings to the Court.
The State seeks leave to appeal against the judge’s orders.
A matter of practice and procedure, especially one addressing the mechanics of a forthcoming interlocutory hearing, is a distinctly unpromising candidate for leave to appeal. Such matters are generally left for the discretion of the primary judge. In the unusual circumstances of this case, however, leave should be granted and the appeal should be allowed. We will explain as shortly as possible why that is so.

Background to proceeding

On 1 May 2002, Victor Peirce was murdered in Port Melbourne.
In June 2006, a person it is convenient to call by the pseudonym ‘Mr Thomas’ pleaded guilty to another charge of murder. He made statements to Victoria Police, including statements implicating the first respondent in the murder of Mr Peirce.
On 22 June 2007, the first respondent was arrested for the murder of Victor Peirce. On 29 September 2009, after a trial, he was found guilty of the murder.
Mr Thomas gave evidence for the prosecution at both committal and trial in the Peirce matter.
At various times, the second respondent acted as a barrister for both the first respondent and Mr Thomas. In July 2006, she reviewed and suggested changes to statements which Mr Thomas provided that implicated the first respondent in the murder of Mr Peirce.
On 25 November 2009, the first respondent was sentenced to 20 years’ imprisonment with a non-parole period of 14 years. The Court of Appeal dismissed an application for leave to appeal against conviction. The High Court refused an application for special leave to appeal.
It was subsequently revealed that the second respondent had acted as a human source for Victoria Police, including during periods when she acted for the first respondent. In February 2019, the first respondent filed a petition of mercy with the Attorney-General pursuant to s 327 of the Criminal Procedure Act 2009 in respect of his conviction of the murder of Mr Peirce. In June 2019, the Attorney-General referred the whole case to the Court of Appeal.
On 26 July 2019, the Court of Appeal determined that there had been a substantial miscarriage of justice. Acting on a concession by the Director of Public Prosecutions, the Court found that, when the second respondent was engaged to act on behalf of the first respondent, she improperly took active steps to ensure that Mr Thomas gave evidence against him. The Court ordered that the first respondent’s conviction for murder be set aside and in its place a judgment of acquittal be entered.
The first respondent was in custody from his arrest on 22 June 2007 until his acquittal and release from custody on 26 July 2019.

Summary of proceeding and issues

On 3 April 2020, the first respondent commenced a proceeding in the Trial Division against the applicant seeking damages for alleged false imprisonment, misfeasance in public office and malicious prosecution. The applicant denies the allegations.
On 2 June 2022, the first respondent commenced a separate proceeding against the second respondent, seeking damages for breach of duties she owed to him. The second respondent denies the allegations.
Orders were made to consolidate the proceedings on 3 August 2022. After various interlocutory steps, the matter is listed for a trial to commence in April 2025.
The dispute the subject of this application for leave to appeal concerns redactions that the applicant has applied to material it has discovered in the proceeding. The redactions are based on grounds including relevance, public interest immunity, statutory secrecy obligations and compliance with suppression orders.
By summons dated 3 August 2023, the first respondent sought unredacted copies of particular pages of 107 documents discovered by the applicant.
On 9 August 2023, a judicial registrar made orders for the filing and service of material in relation to the application and listed it for hearing on 30 August 2023.
On 24 August 2023, the judicial registrar made orders that the confidential affidavit of Scott Wallace sworn on 22 August 2023 filed on behalf of the applicant in opposition to the application be treated as confidential and not be made available for inspection by other parties in the proceeding.
On 28 August 2023, the applicant sought to file confidential submissions. The parties subsequently filed written submissions on the issue whether the applicant should be permitted to rely on confidential evidence and submissions in connection with the application.
The application was allocated for hearing by a judge on 24 October 2023. On 9 October 2023, the judge’s associate advised the parties by email that the judge’s preliminary view was that the confidential affidavit of Scott Wallace sworn on 22 August 2023 filed on behalf of the applicant and the applicant’s confidential submissions dated 28 August 2023 should be provided to the legal representatives for the respondents on the basis of non-disclosure undertakings to the Court. The email indicated that if any party objected to that course, a short oral hearing would be held on 18 October 2023 regarding the issue.
On 11 October 2023, the applicant advised the judge’s chambers that it opposed the proposed course.
On 13 October 2023, the first respondent filed a further summons seeking unredacted copies of particular pages of a further 106 documents discovered by the applicant. The 106 documents were a sub-set of a further 878 documents discovered by the applicant between 22 September 2023 and 14 November 2023.
On 18 October 2023, the hearing took place before the primary judge. She ruled at the end of the hearing that the confidential material should be made available to the respondents’ legal representatives on the basis of non-disclosure undertakings in a form acceptable to the applicant. The judge stated that her ‘reasons for arriving at those arrangements … [were] essentially the reasons given by Beach JA in the case of Goussis v The King [2022] VSCA 255’, and considered the background to and circumstances of this particular case.
The judge also ordered that the parties confer and agree upon a representative sample of documents to be ruled upon at the hearing of the applications on 24 October 2023. She did not order that the respondents be given access to the representative sample.
On 20 October 2023, the judge made orders by consent staying the relevant orders of 18 October 2023 pending determination of the present application for leave to appeal, or further order.

Hearing and reasons of primary judge

The parties filed written submissions ahead of the hearing before the primary judge. The first respondent submitted that the burden rested upon the applicant to establish why the ordinary principle of disclosure to participants in litigation should not apply. The submissions referred to the decision of Beach JA in Goussis v The King.[1] It was submitted that, although that matter concerned a criminal appeal arising from particular facts, the same considerations were to be taken into account in the present civil proceeding. Beach JA referred, in particular, to the interests of justice ‘that those caught up in the criminal justice system … believe that its processes are fair’.[2] Goussis, like the present matter, related to the non-disclosure by Victoria Police of the second respondent’s activities as a confidential informant.
[1][2022] VSCA 255 [29] (‘Goussis’).
[2]Ibid.
The first respondent submitted that, in other cases where similar issues arose, confidential submissions had been provided to counsel after the provision of an undertaking, or an amicus curiae had been appointed to consider the material and either confirm the discoverability of documents or advise as to the appropriate application of redactions. In the present case, in contrast, the applicant was proposing to withhold the material.
The first respondent conceded that it is ordinary practice when a confidentiality claim arises for the court (not the party contesting the claim or their legal representatives) to be provided with unredacted copies of the material to be reviewed while the claim is evaluated. It was submitted that it is not ordinary practice for a plaintiff to be deprived of an opportunity to even hear the submissions of the defendant as to why disputed material should be redacted.
The second respondent supported the first respondent’s application for unredacted discovery. She made other submissions which it is not necessary to set out.
The applicant submitted before the primary judge that releasing the confidential affidavit and submissions to the other parties would destroy the confidentiality which was claimed before the Court had decided the substance of the claims, including where the public interest lies in the public interest immunity matters. It submitted that courts had permitted the course of receiving confidential evidence and submissions provided by one party, without disclosing that material to other parties, many times before.[3]
[3]R v Benbrika [2007] VSC 283 [15]–[18] (Bongiorno J) (‘Benbrika’); R v Westbrook [2020] VSC 472 [2], [70] (Beale J); P Dawson Nominees Pty Ltd v Multiplex Ltd (2007) 65 ACSR 239 [15]–[23] (Goldberg J); [2007] FCA 1659; Maddafferi v The King [2023] VSCA 178 [3], [34]–[35] (McCann JR).
The applicant submitted that it was unnecessary to release its confidential submissions and evidence to counsel, given the open materials that were before the Court. It submitted that the Court could decide whether the redactions were justified based on the open evidence and submissions, and the nature and context of the material, if necessary followed by inspection by the Court of some or all of the unredacted documents with the assistance of the additional explanation given in the confidential affidavit and submissions. It also submitted that releasing the confidential submissions and affidavit to the first respondent before determining the claim would be contrary to the High Court’s decision in Commonwealth v Northern Land Council.[4] In that case, the majority upheld a public interest immunity claim and criticised the process of releasing documents to lawyers, even on a restricted basis, because it represented an encroachment upon the confidentiality claimed for the documents, in a case where public interest in their immunity from disclosure was of the highest order.[5] The applicant submitted that it was for the court to carry out the burden of inspection if that was necessary.
[4](1993) 176 CLR 604.
[5]Ibid 620 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ).
The applicant further submitted that releasing confidential material to lawyers had a compromising effect on the relationship between lawyers and their clients, and raised the risk of unwitting disclosure of that material.[6]
[6]Jackson v Wells (1985) 5 FCR 296, 307–8 (Wilcox J); Ryan v Victoria [2015] VSCA 353 [170]–[171] (Tate JA, Santamaria JA agreeing at [177], Ferguson JA agreeing at [178]); Seymour v Price [1998] FCA 1224, 9 (French, O’Connor and North JJ).
At the beginning of the hearing, the primary judge indicated her provisional view that the hearing should proceed as had been outlined in the email from her associate during the previous week. She invited further submissions, albeit noting that the Court had very limited time.
Senior counsel for the applicant submitted that the decision in Goussis was distinguishable. Because it involved an appeal rather than a trial, the risk of inadvertent or subconscious deployment ‘in the heat of battle’ did not exist in that case. It was submitted that the course taken in Goussis was meant to operate only in exceptional circumstances.[7]
[7]In this Court, the applicant also submitted that Goussis involved a criminal matter in which the prosecutorial duty of disclosure was in issue, whereas a civil proceeding such as the present raised more confined issues of relevance determined by reference to pleadings.
It was further submitted that the confidential affidavit and submissions in the present case contained the substance of the public interest immunity material and amounted to an extension of the public interest immunity claim. As such, they should be treated with ‘as much respect’ as the public interest material itself. Senior counsel took the judge to paragraphs in the affidavit which it was submitted effectively disclosed the substance of the material in issue. Although referring to its existence, counsel did not take the judge to any particular part of a schedule exhibited to the affidavit which set out the specifics of each justification for redaction. The judge observed in the course of argument that, having looked at the affidavit, it was not immediately obvious to her that the material in it was highly sensitive intelligence material as had been submitted. The judge indicated that she had not seen the confidential submissions. She had, however, seen the schedule.
The parties also made submissions about the provision of a representative sample of documents on which the Court could rule, rather than evaluating each document individually. In this Court, the applicant suggested that this course might make it unnecessary to have a contradictor because the scale of the evaluative task would be significantly reduced. The applicant did not expressly submit before the primary judge that the matter did not require a contradictor. It submitted, however, that, if the Court needed assistance in dealing with the claims, an amicus should be appointed.
At the end of the hearing, the primary judge ruled on the matter. She indicated that the matter would be heard on the basis of the confidential affidavit and submissions being provided to the representatives for the plaintiffs and the second defendant, on the basis of non-disclosure undertakings in a form satisfactory to the first defendant. She explained as follows:
My reasons for arriving at those arrangements for the hearing are essentially the reasons given by Beach JA in the case of Goussis v The King [2022] VSCA 255. In this case, given the issues and the volume of documents involved, the court requires a contradictor. So I’m not prepared to simply receive submissions from one party without some contradictor in this case, both in view of the case management considerations and the impending milestone events in the litigation, being a mediation early next month, and a trial on I think it’s 19 February.
The best contradictor and the best judge of the forensic relevance of the documents is the plaintiff. There is also a consideration that it is only the plaintiff who can make judgements about whether it is worth pursuing the claim for unredacted documents in light of the information that the legal representatives will now have available to them as the basis for the claims for public interest immunity and statutory secrecy. I am also very conscious of the background to this case, and the issues it raises.
And in circumstances where the claim is that the plaintiff spent 12 years in prison, having been unfairly tried on a basis that was known to but not disclosed by Victoria Police, I do not think this is an appropriate case in which to receive confidential material from police that the plaintiff’s legal representatives have not had an opportunity to view.
As already mentioned, the judge also directed that the parties confer and agree upon a representative sample of the documents for discussion and ruling at the ensuing hearing.

Proposed grounds of appeal and submissions

The applicant contends that the judge erred in requiring it to provide copies of the confidential affidavit and submissions to the respondents’ legal representatives on the basis of non-disclosure undertakings to the Court.
The applicant seeks leave to appeal on the following proposed grounds:
1The primary judge, by ordering the disclosure of the confidential affidavit and confidential submissions filed by the applicant supporting its PII and statutory secrecy claims (confidential material) to the respondents’ lawyers upon a non-disclosure undertaking (Order), erred in the exercise of her discretion, in that her Honour:
(a)contrary to authority, treated the confidential material as less confidential and deserving of less protection than the documents over which PII and statutory secrecy claims were made;
(b)proceeded on the incorrect principle that confidential material could be released to other parties’ lawyers upon provision of an undertaking to the Court if that course was merely ‘an appropriate and workable way forward in this case’, when authority established that there is a ‘very high barrier’ to the release of such material; and
(c)failed to distinguish this Court’s decision in Goussis v The King [2022] VSCA 255 (Goussis) and so wrongly held that Goussis supported releasing the confidential material to the respondents’ legal practitioners upon provision of an undertaking to the Court;
(d)failed to consider a relevant consideration, namely, the appointment of amici curiae (in the event, the court needed assistance with the representative sample) instead of the respondents’ lawyers to assist the court;
(e)failed to consider a relevant consideration, namely that the representative sample pathway adopted by her Honour necessarily meant that the inspection task to be performed in respect of the relatively small volume of documents in the representative sample, did not impose such a burden on the court, such that the confidential material had to be disclosed to the respondents’ lawyers;
(f)failed to properly consider all of the above relevant considerations in a wholistic manner in order to make a proper assessment of the nature of the inspection task involved; and/or
(g)failed to consider the three options suggested by the applicant and open to the Court in respect of the inspection and the determination of the PII claims.
2Alternatively, the primary judge erred by misconceiving and misapplying Goussis to the present case.

For reasons that will become clear, it is not necessary to set out all the submissions that were made in respect of these various grounds.

Effect of the impugned order on the claimed confidentiality — ground 1(a)

Senior counsel for the first respondent quite properly indicated that he was hampered in his ability to assist the Court by making submissions without having been given access to the confidential submissions and affidavit. Objection was not taken, however, to this Court having access to that material. In the course of the hearing in this Court, senior counsel for the applicant sought to demonstrate, by reference to the confidential submissions and affidavit and a confidential aide memoire, that disclosure of that material would have the effect of disclosing the subject material, in respect of which confidentiality or statutory protection from disclosure was claimed. Again, the first respondent did not object to this course, and was unable to assist by making submissions in respect of the submission itself. We considered that it was appropriate to entertain the submission nonetheless, in circumstances where it was sought to demonstrate that the effect of the order made by the primary judge was to reveal the subject material. That submission had been made before the primary judge, by reference to the affidavit alone, in circumstances where she had not seen the confidential submissions before making the relevant order.
The first proposed sub-ground of appeal (ground 1(a)) contends that the judge erred by failing to treat the confidential affidavit and submissions as being entitled to the same protection as the disputed documents themselves. Although the written submissions of the parties were cast at a general level, the issue took concrete form when the Court was taken to specific examples, as described above. In that regard, the applicant submitted that, when contextual information in the redacted versions of the documents is combined with the explanations for redaction provided in the confidential material (particularly the schedule to the confidential affidavit), the orders made by the primary judge ‘severely compromise, if not destroy, the confidentiality in the redacted materials before the applicant’s claims are adjudicated’. This was characterised as a ‘jigsaw’ effect. In addition, disclosure of the confidential submissions themselves, and the explanations for redactions contained in the confidential schedule, would destroy the confidentiality.
It suffices to say that perusal of the documents by reference to the specific submissions made in open court by the applicant, together with the confidential aide memoire, has satisfied us that disclosure of the confidential affidavit (with its schedule) and submissions would have the effect of disclosing at least part of the material claimed to be deserving of protection from disclosure. Part of the basis for that conclusion rests on what can be derived by comparing redacted versions of documents with the substance of the claims made in respect of them. The nature of the examples presented in the aide memoire suggests that these are unlikely to be isolated cases. In addition, many references in the submissions and the confidential schedule disclose in terms the substance of the confidential information said to sustain the redaction in question. In many cases, that disclosure compromises the confidentiality interest sought to be protected. It is inappropriate for us to say more about this topic.
We have already noted that the first respondent was not in a position to engage meaningfully with this issue. Taking that circumstance into account, we are satisfied that the course ordered by the judge will have the effect the applicant identified, for the reasons we have stated. In our view, this establishes House v The King error in the decision of the primary judge. Although the judge did not have the benefit of the aide memoire, submissions as to the ‘jigsaw’ effect, or the confidential submissions, the issue was raised whether the proposed course would have the effect the applicant identified. The judge did not address this issue in her reasons, but indicated during argument that she doubted that the affidavit sustained the argument. We have had the benefit of more detailed submissions based on the more pertinent documents.
In the result, the judge did not take account of the fact that disclosure of the confidential affidavit and submissions would destroy or significantly impair the interest sought to be protected.[8] The judge’s discretion has therefore been shown to have miscarried and ground 1(a) is made out.
[8]Benbrika [17] (Bongiorno J).

Matters of principle raised by remaining grounds

It is not strictly necessary, in the circumstances, to address the remaining grounds of appeal. For the sake of completeness, however, we observe that Beach JA was not, in the passage in Goussis upon which the first respondent relied, laying down any general principle to the effect that disclosure by one party to another party’s lawyers is desirable whenever the other party’s case is itself about non-disclosure on the part of the first party. Beach JA was, to the contrary, at pains to say that this consideration could not ‘drive the result’.[9] Nor do we read the primary judge’s reasons in that way. Instead, each case depends on its facts, as Beach JA made clear:
The authorities dealing with the question of how claims of confidence, public interest immunity and the like are to be dealt with in the course of a proceeding show that sometimes it is appropriate for the Court to resolve the issues without a contradictor; sometimes amicus curiae are appointed; and sometimes the other party’s legal representatives, on appropriate undertaking as to confidentiality, are permitted to see the material. The appropriate course to be taken requires a proper examination of the specific facts of the case, all of its circumstances, the importance of the issue, the likelihood of any claimed risk eventuating if information is provided to a third party and the seriousness of the consequences should any such risk eventuate.[10]
[9]Goussis [2022] VSCA 255 [29].
[10]Ibid [23].
Plainly, the processes utilised for deciding issues of confidentiality of documents, or parts of documents, should not themselves result in disclosure of the confidential documents to the other parties to the litigation. Nor should there be disclosure of confidential documents to their legal representatives unless the court decides that is necessary to decide the issue, after first inspecting the documents itself.[11]
[11]Commonwealth v Northern Land Council (1993) 176 CLR 604, 620 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ) (‘Northern Land Council’); Alister v The Queen (1984) 154 CLR 404, 469-70 (Gibbs CJ, Wilson, Brennan and Dawson JJ).
As Goussis demonstrates, however, the position regarding confidential submissions and evidence (as distinct from the documents themselves) is more nuanced. Disclosure of that material to legal representatives (without revealing the confidential documents themselves or their substance other than as just described) may enable confidential evidence to be interrogated and the true significance of particular matters to be understood.[12] On the other hand, it may create a risk, more pronounced in a trial than on appeal, of inadvertent disclosure of that material.[13] In addition, the legal representatives in question may be constrained in their dealings with their client as a result of the specific knowledge they have obtained.[14]
[12]Goussis [2022] VSCA 255 [22], [26] (Beach JA).
[13]Jackson v Wells (1985) 5 FCR 296, 307–8 (Wilcox J).
[14]Northern Land Council (1993) 176 CLR 604, 638 (Toohey J).
The alternative course, if the court requires a contradictor, is for the appointment of an amicus curiae to make submissions in favour of disclosure, with the benefit of having seen any confidential affidavit and submissions (and the confidential material if the court decides that is necessary after inspecting that material itself). As the first respondent submitted, this solution is not ideal because the submissions of the amicus will not be informed by the instructions of the party contesting disclosure, and will lack the insight into the forensic significance of specific documents which can only come from close concentration upon those documents in the light of the client’s instructions. It may well, however, offer the most practical course in a particular case.

Conclusion

In circumstances where it has been shown that the impugned orders would have the effect of compromising the confidentiality that is in issue, giving rise to substantial injustice, it is appropriate to grant leave to appeal, notwithstanding that, in form, the proposed appeal raises a matter of practice and procedure.
In the appeal, the result is that the primary judge’s orders must be set aside.
The applicant submitted that this Court should make extensive pre-hearing orders in place of the orders being set aside. However, it is undesirable that we constrain the operation of the trial court in that way. Among other things, the trial court should be free to decide whether the representative sample should be identified before the issues regarding a contradictor and confidentiality are addressed.
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[2024] VSCA 190

3 September 2024