Tah Land Pty Ltd v Western Australian Planning Commission [No 2]

[2022] WASC 222

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   TAH LAND PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [No 2] [2022] WASC 222

CORAM:   TOTTLE J

HEARD:   1 JULY 2022

DELIVERED          :   1 JULY 2022

FILE NO/S:   CIV 1069 of 2022

BETWEEN:   TAH LAND PTY LTD

Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION

First Respondent

ATTORNEY GENERAL FOR WESTERN AUSTRALIA

Second Respondent

Catchwords:

Practice and procedure - Production of documents - Claim of public interest immunity - Whether public interest immunity applied to documents prepared for the purposes of briefing the Minister for Planning for the acquisition of land - Whether public interest immunity applied to documents prepared for the purposes of decision-making by the Executive Council for the acquisition of land

Legislation:

Nil

Result:

Claim for public interest immunity dismissed

Category:    B

Representation:

Counsel:

Applicant	:	M O'Meara SC
First Respondent	:	C Ide
Second Respondent	:	C Ide

Solicitors:

Applicant	:	Hotchkin Hanly
First Respondent	:	State Solicitor's Office
Second Respondent	:	State Solicitor's Office

Cases referred to in decision:

Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404

Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604

CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48

FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342

R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170

RP Data Ltd v Western Australian Land Information Authority [2010] FCA 922; (2010) 188 FCR 378

Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1

Tah Land Pty Ltd v Western Australian Planning Commission [2022] WASC 219

The Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34; (2008) 36 WAR 83

Zarro v Australian Securities Commission [1992] FCA 233; (1992) 36 FCR 40

TOTTLE J:

Introduction

1. These reasons concern the respondents' claim that documents discovered by them are the subject of public interest immunity privilege and should not be inspected by the applicant. 

2. The relevant background is set out in Tah Land Pty Ltd v Western Australian Planning Commission,[1] and these reasons assume familiarity with that decision.

   [1] Tah Land Pty Ltd v Western Australian Planning Commission [2022] WASC 219.

3. The documents in question and the circumstances in which they were produced were described in an affidavit sworn on 16 June 2022 by the Director General of the Department of Planning, Lands and Heritage, Mr Anthony Michael Kannis as follows:

   8.Document 1 is a Briefing Note for the Minister for Planning titled 'Executive Council Submission- Proposed Compulsory Taking-Portions of Lots 2 and 3 Wanneroo Road and Hepburn Avenue, Madeley' from DPLH and the WAPC.  It is dated 14 September 2021 and signed by the (then) Director General of DPLH and the Chairman of the WAPC.  Attached to the briefing note are the following documents:

   (a)Document l(a) is an ExCo Explanatory Note, dated 14 September 2021 and signed by the Chairman of the WAPC. The contents of this document relate to seeking the Governor's consent under section 191 of the Planning and Development Act 2005 to the WAPC compulsorily taking land for the purpose of Primary Regional Roads - Wanneroo Road and Hepburn Avenue Intersection under the Metropolitan Region Scheme (MRS) ('subject land').

   (b)Document 1(b) is a submission to the ExCo for the Minister's consideration.

   (c)Documents l(c)-(e) are supporting information comprising three plans as follows:

   i.A copy of a deposited plan identifying the subject land, on the north-east corner of Wanneroo Road and Hepburn Avenue;

   ii.An extract from the MRS Map in respect of the subject land and wider locality; and

   iiiAn aerial photograph of the subject land and wider locality.

   9.Document 1 and attachments were received on 14 September 2021 by the Minister's Office.

   10.Document 2 is a version of the Briefing Note I have referred to above as Document 1, signed by the Minister on 28 September 2021.

   11.From my perusal of the Documents, it appears that Documents 1(a) and 1(b) were delivered to ExCo on 29 September 2021.

   12.Document 3 is a Signed ExCo Minute dated 5 October 2021 and signed by the Members of ExCo at the meeting of that date.

   13.Document 4 is a Correspondence Coversheet of the Minister's office.  It is titled 'EXCO SUBMISSION - Proposed Compulsory Taking - Portions of Lots 2 and 3 Wanneroo Road and Hepburn Avenue, Madeley'.  These Coversheets are generated by the Minister's Office on receipt of correspondence and documents.

   14.The Coversheet is dated 14 September 2021.  It records via handwritten annotations the progress of the briefing note in the Minister's Office and ExCo materials to and from ExCo.  Based on this Coversheet, it appears that following ExCo, the signed Executive Council Minute was returned to DPLH on 5 October 2021.

4. Mr Kannis explained the grounds on which the documents are said to be the subject of public interest immunity as follows:

   15.In general, briefing notes to Ministers are strictly confidential.  Depending on their contents, they may be subject to complete or partial disclosure under the Freedom of Information Act 1992.

   16.The DPLH often deals with compulsory takings of land which are considered by the Minister.  The decision to compulsorily acquire land requires consideration of a range of factors, including budgetary matters and project management.

   17.Matters before ExCo and the associated materials are also treated as strictly confidential.

5. The principles to be applied to determine whether documents are the subject of public interest immunity have been considered on a number of occasions.[2]

   [2] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 38, 48 (Gibbs ACJ); Zarro v Australian Securities Commission [1992] FCA 233; (1992) 36 FCR 40; Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604, 616 (Mason CJ, Brennan, Deane, Dawson, Gaudron & McHugh JJ); CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48 [16] (Owen & Steytler JJ); The Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34; (2008) 36 WAR 83 [30] (Steytler P, McLure JA & Newnes AJA); RP Data Ltd v Western Australian Land Information Authority [2010] FCA 922; (2010) 188 FCR 378.

6. Relevantly, for the purposes of this application, the principles that may be derived from the authorities may be summarised as follows:

   (a)The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it.[3]

   [3] CTC Resources NL v Australian Stock Exchange Ltd [16] (Owen & Steytler JJ).

   (b)The general rule will not apply where the court is of the opinion that the public interest in the fair administration of justice outweighs the interest giving rise to the immunity.[4]

   (c)If the court is satisfied that both potentially conflicting aspects of the public interest are engaged then the court is required to consider which aspect of the public interest predominates.[5]

   (d)An objection may be made to the production of information or a document because it would be against the public interest to disclose its contents or because it belongs to a class of documents which in the public interest ought not to be produced.[6]

   (e)There are certain documents which by their nature fall in a class which ought not to be disclosed no matter what the documents individually contain - the example most frequently given of documents forming such a class are cabinet minutes.[7]  Mason J explained the rationale for the immunity in respect of cabinet minutes is that their disclosure would undermine the doctrine of collective responsibility.[8]

   (f)The classes of documents which may attract public interest immunity are not closed but caution is required before new classes are accepted.[9]

   (g)A class based public interest immunity claim will be upheld only if it is really necessary for the proper functioning of the public service to withhold documents of that class from production.  If relevant documents form a class that relate to the framing of government policy at a high level that is a factor that will favour non-disclosure.[10]

   (h)Protection from production in respect of documents falling with a class is not absolute.[11]

   (i)Mere confidentiality is not enough to attract public interest immunity.[12]

   (j)Claims for public interest immunity must be supported by more than 'amorphous statements' that non-disclosure is necessary for the proper functioning of Executive Government, without saying why disclosure would be detrimental to their functions.  The grounds on which it is contended that the documents or information should not be disclosed must be stated with precision.[13]

   (k)Ministerial briefing notes have been held not to attract public interest immunity.[14] 

   [4] CTC Resources NL v Australian Stock Exchange Ltd [16] (Owen & Steytler JJ).

   [5] Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, 412 (Gibbs CJ) citing Sankey v Whitlam.

   [6] The Australian Statistician v Leighton Contractors Pty Ltd [31] (Steytler P, McLure JA & Newnes AJA) citing Sankey v Whitlam (39) (Gibbs ACJ); Commonwealth v Northern Land Council (616) (Mason CJ, Brennan, Deane, Dawson, Gaudron & McHugh JJ).

   [7] Sankey v Whitlam (39) (Gibbs ACJ).

   [8] Sankey v Whitlam (97 - 98) (Mason J).

   [9] Sanky v Whitlam (60) (Stephen J).

   [10] Sankey v Whitlam (39) (Gibbs ACJ).

   [11] Sankey v Whitlam (40 - 42) (Gibbs ACJ).

   [12] Sankey v Whitlam (42 - 43) (Gibbs ACJ).

   [13] Sankey v Whitlam (96) (Mason J).

   [14] RP Data Ltd v Western Australian Land Information Authority [49] - [51] (Barker J).

7. The proposition that documents relating to the proceedings of the Executive Council form a class of documents which is immune from production in litigation is inconsistent with the principles stated above.  The correct position was stated by Mason J in The Queen v Toohey; Ex parte Northern Land Council,[15] that is such documents are not privileged from production unless their non-disclosure is necessary for the protection of the public interest and that the public interest outweighs the public interest in the proper administration of justice.[16]  The reason for this may be found in the observation of Stephen J in FAI Insurances Ltd v Winneke,[17] to the effect that powers vested in and decisions made by the Governor in Council do not habitually only involve matters of high public policy, rather it is common for 'a host of routine administrative decisions, involving neither matters of high government policy nor any nice exercises of policy-oriented discretion' to be vested in the Governor in Council.[18]

   [15] R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170.

   [16] R v Toohey; Ex parte Northern Land Council (222) (Mason J).

   [17] FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342.

   [18] FAI Insurances Ltd v Winneke (352 - 354) (Stephen J).

8. The overarching submission within which the respondents' contentions are advanced is that the purpose of the protection afforded by the public interest immunity doctrine is to ensure the proper working of government and that policy and decision making is uninhibited.  They contend that the decision making associated with the compulsory taking of land concerns sensitive areas of executive responsibility and high-level policy.  This, it is said, is because a decision to take land compulsorily is a decision premised on policy which may be controversial to both directly affected persons and others.  The respondents contend that the policy is high level policy and one which involves sensitive areas of executive responsibility as well as budgetary and project management considerations.

9. The respondents say that the documents for which public interest immunity is claimed relate to the Minister's consideration and the materials before Executive Council.  The respondents argue that the public interest in ensuring that the steps leading to, and decision making at, Executive Council is maintained as confidential outweighs the applicant's desire to access such documents for the purposes of judicial review.

10. I am not satisfied that disclosure of the documents which are the subject of this application would be injurious to the public interest - the public interest in non-disclosure is not engaged.  I reached a provisional conclusion to this effect on reading Mr Kannis' affidavit and on my consideration of the context in which the documents were produced.  My reasons for reaching that provisional conclusion were as follows.

11. First, I do not accept the proposition that documents relating to the proceedings of the Governor acting in Executive Council are a class of documents which attract public interest immunity.

12. Secondly, the fact that the documents are confidential or regarded as 'strictly confidential' is not sufficient to establish public interest immunity.

13. Thirdly, the documents do not relate to the framing of policy at a high level.  There is nothing about the circumstances in which the documents were brought into existence that suggests that their disclosure would inhibit open discussion between officers of the Executive Government about policy issues or undermine collective ministerial responsibility.

14. Fourthly, while it may be accepted that the documents relate to a matter of importance for all the parties concerned, the subject matter is far removed from the subject matter of documents that have attracted public interest immunity in the authorities.  There is nothing about documents of the nature of the kind in question, produced in the circumstances in which they were produced, that provides any support for the proposition that the proper working of government, including the making of government policy, will be inhibited if they were to be disclosed.  On one view, indeed a view that reflects the respondents' position in the substantive application, the documents are part of the administrative mechanism by which the ultimate consequences, flowing from the reservation of the intersection land, by the amendment made to the Metropolitan Regional Scheme in 1994, were carried into effect.

15. Fifthly, that the documents include a briefing note to the Minister is not sufficient to attract public interest immunity.

16. At the conclusion of the hearing I inspected the documents.  My inspection of the documents confirmed my provisional view and for that reason I ordered that the documents be made available for inspection to the applicant.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

OK

Associate to the Honourable Justice Tottle

1 JULY 2022