Vasey Housing v Dept Fair Trading

[2001] NSWSC 996

CITATION:	Vasey Housing v Dept Fair Trading [2001] NSWSC 996
FILE NUMBER(S):	SC 030055/2001
HEARING DATE(S):	23 October, 2001.
JUDGMENT DATE:	8 November 2001
PARTIES :	The Vasey Housing Association of N.S.W. (Plaintiff) Director General of Dept of Fair Trading (Defendant)
JUDGMENT OF:	Cooper AJ

COUNSEL :	Dr G Flick Ms N.E. Abadee for Plaintiff Paul Roberts S.C. for Defendant
SOLICITORS:	David Catt Solicitor Director of Legal Services, Dept of Fair Trading Gadens Lawyers, Castlereagh St Sydney
CATCHWORDS:	Legitimate forensic purpose - Public interest immunity - Allowing access to documents
LEGISLATION CITED:	Retirement Villages Act,1999. Fair Trading Act Trade Practices Act
CASES CITED:	King v GIO Aust Holdings Ltd (2001) FCA 1487 R v Saleam (1999 NSWCCA 86 27/4/99) R v Young (1999 NSW cca 166 7/7/99) W.A. Pines v Bannerman 30 ALR 559
DECISION:	See Summary Orders

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

COOPER A. J.
Thursday 8 November 2001

30055/2001 VASEY HOUSING ASSOCIATION NSW

V

THE DIRECTOR GENERAL THE DEPARTMENT OF FAIR TRADING
JUDGMENT
HIS HONOUR

1   Before this Court are two notices of motion. The first is brought by the Director General Department of Fair Trading (referred to hereafter as DFT) against the Plaintiff (hereafter referred to as Vasey) seeking orders that paragraphs 2, 4, 5, 6, 7 and 8, of Vasey’s notice to produce directed to DFT dated 5 September 2001, be set aside. The second is a notice of motion seeking orders that DFT’s notice of motion be set aside as vexatious and as an abuse of Court process.

2   To understand the issues raised by these notices of motion it is necessary to consider the history in some detail.

3 Vasey is a charitable organisation which operates a number of Retirement Villages within the meaning of the Retirement Villages Act, 1999. DFT is empowered under the terms of that Act to oversee the administration of Retirement Villages by those who operate them. Towards this end DFT is granted quite wide powers under the Retirement Villages Act.

4 On about 23 August, 2001, DFT, pursuant to Section 193 of the Retirement Villages Act, served upon Vasey a notice to produce some 14 classes of documents.

5 In its relevant parts Section 193 provides:-

(1) If an investigator believes on reasonable grounds that a person is capable of giving information, producing documents… in relation to a matter that constitutes or may constitute an offence against this Act or the regulations, the investigator may, by notice in writing given to the person, require the person:
(b) to produce to an investigator, in accordance with the Notice [any such documents].

6 Sub section 3 of Section 193 provides that a person must not without reasonable excuse refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it. A maximum penalty of 50 penalty units is stipulated.

7 The notice was issued by Lovaine Dean an Investigator appointed under Section 18 of the Fair Trading Act and it sets out that she:

“do[es] on reasonable grounds as set out in the attached Notice of Belief, believe that you are capable of producing documents in relation to a matter that constitutes or may constitute an offence under the Retirement Villages Act in the operation of [5 named Retirement Villages].

8 Particulars are given in general terms of eight offences which are alleged to have been committed or may have been committed under the Act. The details of the offences lack particularity of persons, times and places and are merely in general terms. For example, “failed to annex a disclosure statement that complies with the Act to a Village Contract - contrary to Section 18 of the Act.”

9 Together with the notice is a document entitled “Notice of Belief under Section 193(1) of the Retirement Villages Act, 1999” which reads:-

“I Lovaine Dean, Investigator, appointed under Section 18 of the Fair Trading Act 1987, believe on reasonable grounds set out in the Schedule to Notice of Belief that the Vasey Housing Association is capable of producing documents in relation to a matter that constitutes, or may constitute an offence against Sections 18, 20, 105, 106, 112, 116 and 181 of the Retirement Villages Act 1999.”

10   The Schedule to that Notice of Belief is in seven paragraphs, namely:-

“1. The Vasey Housing Association NSW operates Retirement Villages as defined by the Retirement Villages Act, 1999 [and there sets out the names and locations of six retirement villages].
2. The Vasey Housing Association NSW must operate the Retirement Villages pursuant to the Retirement Villages Act, 1999.
3. Residents, as defined by the Act, of the retirement villages who have residence rights in respect of residential premises within the retirement villages reside within the retirement villages.
4. The Vasey Housing Association NSW receives recurrent charges from residents of the Retirement Villages.
5. The Vasey Housing Association NSW incurs expenditure at each of the retirement villages.
6. Some residents of Elizabeth Court have moved to other Vasey Housing Association retirement villages.
7. Some residents have left the retirement villages.”

11   Whilst the facts in the schedule to the Notice of Belief are capable of giving rise to an inference that Vasey is in possession of documents, there is nothing in there which gives rise to any inference of the existence of a matter that constitutes or may constitute an offence against the named provisions of the Act.

12   By Notice of Motion dated 3 September, 2001, and returnable the following day, Vasey sought orders that DFT be restrained from taking any action in relation to the above Notice to Produce, that Vasey be not compelled or required to comply with the notice and that the time for compliance with the notice be extended until the determination of that application by order of the Court.

13 The Notice of Motion came on for hearing before Sully J, on 4 September, 2001. His Honour set the matter down for hearing at 10.00am on 6 September, and further made an order that Ms Dean file by 10.00am on 5 September an affidavit setting out clearly the reasonable grounds upon which she held the belief referred to in the Section 193 notice.

14   At the hearing before me DFT submitted that this order was made without power. The arguments were amplified in written submissions thus:-

(a) His Honour had no power to order that an affidavit be filed on behalf of the Director General in the proceedings setting forth reasons for the issue of the s. 193 Notice, and even if His Honour had such power he should not have exercised it.
(b) His Honour seemed to have made the order under the mistaken belief that the relevant part of practice Note 119 should be applied to all administrative decisions including this matter.
(c) Practice Note 119 refers to the provision of a statement in writing (giving reasons) not the filing of evidence.
(d) On a proper consideration of the matter no order should have been made (or could properly have been made) for the provision of reasons let alone the filing of an affidavit setting out reasons.
(e) It is not necessary to attempt to undo what has been done by Sully J. The affidavit setting out reasons has now been filed. However, the plaintiff should not be permitted to take further advantage of the situation. The plaintiff has used the filing of the affidavit as a springboard for the issue and the validity of the Notice to Produce.

15 On behalf of DFT it was submitted that the order was validly made pursuant to Practice Note 119. These submissions were further amplified by written submissions which referred to Part 23 Rule 2(3) of the Supreme Court Rules and to King v GIO Australia Holdings Ltd. [2001] FCA 1487. These submissions have been taken into account.

16   Whether the order was made within or without power is not a matter for me to determine. The fact is that Sully J. did make the order and that, in compliance therewith, Ms Dean did swear an affidavit on 4 September 2001. In my view it would be wrong for me to decide the issues before me as if these events had not occurred.

17   In her affidavit she refers to attending a meeting of residents at the Elizabeth Court Retirement Village on 24 May, at which she was provided with certain documents and details of complaints which she describes.

18 She goes on to say that as a result of examining the material she formed certain beliefs which she describes as to the existence of possible breaches of the Retirement Villages Act.

19   Following upon receipt of this affidavit, Vasey issued a Notice to Produce to DFT, paragraphs 2, 4, 5, 6, 7 and 8 of which are in the following terms:-

(2) Copies or originals of the “number of documents” referred to in paragraph 3 of the affidavit on Ms Lovaine Dean sworn 4 September, 2001 (Miss Dean’s affidavit).
(4) Originals or copies of all of the complaints referred to in paragraph 7 of Ms Dean’s affidavit.
(5) Any document recording or relating to the “further inquiries” made by Ms Dean and referred to in paragraph 9 of Miss Dean’s affidavit.
(6) “All of the material” referred to in paragraph 9 of Ms Dean’s affidavit.
(7) Any document recording or relating to any investigation by the Department of Fair Trading in relation to the commission or possible commission by the Plaintiff of an offence against the Retirement Villages Act, 1999, or the Retirement Villages Regulations 2000.
(8) Any document recording or relating to an assessment by the Department as to whether the Plaintiff had committed, or may have committed, an offence against the Act or the Regulations.”

20   On behalf of Vasey it is submitted that this notice to produce required the production of documents which, according to Ms Dean’s affidavit, go to the existence on her part of reasonable grounds for believing that Vasey is in possession of documents relating to matters which constitutes or may constitute an offence under the Act or Regulations.

21   It is the obligations (if any) of DFT pursuant to this notice to produce issued by Vasey on 5 September, 2001, which gave rise to the issues before me considered on 23 October 2001.

22   On behalf of Vasey it was submitted that it was not open to the Court to set aside any paragraphs of the Notice to Produce because those matters had already been determined by Sully J, who dealt with these issues on 6 September, 2001. On behalf of DFT it was submitted that this issue was not so determined.

23   It is therefore necessary to look closely at the transcript of what did occur on 6 September last.

24   On page 3 lines 29 - 35, counsel for DFT is recorded as saying:-

“If Your Honour orders compliance with paragraph 2 to the final paragraph of the notice to produce, my instructing solicitors will arrange for the documents to come to Court this afternoon, but someone will have to go through the documents to sort out what is required by the Notice to Produce. The notice is an abuse of process and a fishing exercise and serves no legitimate forensic purpose. ”
[The emphasis is mine].

25   It is clear, therefore, that at this hearing counsel for DFT argued that the Notice was an abuse of process. At line 45 on the same page the record notes:-

“His Honour stated he did not understand why in principle the Court was not entitled to see the documents and to form its own view whether upon a proper understanding of the contents of the document the view was formed on reasonable grounds.”

26   At line 56 it is stated:-

“His Honour pointed out a notice to produce has the force of a subpoena under the Rules and why should the Court not require these documents to be produced to the Court as it was not acceptable for any public authority, absent as specific statutory provision, to say simply they would not produce the documents. His Honour further stated unless there was some statutory provisions to the contrary, or some authority, he could not see why the documents ought not be produced to the Court in answer to the notice to produce which had the character of the subpoena, that is to say, an order of the Court.”

27   His Honour is also recorded as saying at page 4, line 40:-

“I will make an order under Part 36 Rule 13(1)(a) and order those documents to be produced some time today to the Court. I am disposed then to put the matter in the applications list for mention on Monday to the intent of the parties seeing the list Judge before Monday and getting a date which can be fixed for the hearing of this matter.”

28   He then went on to say at line 53:-

“That means upon the date fixed for the hearing you can both argue whether or not there were some legitimate claim of public interest or other appropriate privilege protecting from production to the plaintiff some of the documents my order would require to be produced to the Court.”

29   As I interpret what occurred during the proceedings on 6 September an order was in fact made requiring DFT to produce the documents to the Court. Those documents were then to remain sealed and not to be disclosed to either party pending further order of the Court. Indeed His Honour specifically ordered:-

“that the Plaintiff not have access to those documents save for the document numbered 1 in Schedule A to the notice to produce, without an order of a Judge of this Court.”

30   Accordingly, the issues before me do not involve the validity of the notice to produce but rather whether access to the documents should be given to Vasey.

31   This matter came on for mention before Whealey J. on 10 September, 2001. It was submitted on behalf of DFT that the contents of the transcript of 10 September indicates that the issue before me should be limited to the question of public interest immunity. As I read what occurred on that day no such limitation of grounds of objection to access being granted to Vasey was ordered. Indeed on page 2 line 26, counsel for Vasey is recorded as saying:-

“I think Sully J., indicated we should give as a reasonable estimate one day. It may take longer than that, we’re not sure of the basis for objecting to production but it may be something in the interest of public immunity claim.”

32   In response to this counsel for DFT said “Yes Your Honour, the issues will be privileged and public interest issues.”

33   At the hearing before me Mr. Roberts S.C. indicated that there were three bases upon which DFT submitted that Vasey should not have access to the documents. They are:-

1. The documents are protected from disclosure by Section 200 of the Retirement Villages Act.
2. Vasey has no legitimate forensic purpose in seeking access to those documents.
3. If neither of the above succeed then the documents are protected from disclosure by public interest immunity.

Section 200 of the Retirement Villages Act.

34   The relevant parts of this section provide:-

“A person must not disclose any information obtained in connection with the administration or execution of this Act unless the disclosure is made:-
(b) in connection with administration or execution of this Act or
(c ) for the purposes of any legal proceedings arising out of this Act (or any other Act) or of any report of any such proceedings or
(f) with other lawful excuse
Maximum penalty 5 penalty units.”

35   It is to be noted that on its clear reading this section makes it an offence punishable by a fine to disclose information obtained in connection with the administration or execution of the Act unless the disclosure is made in certain circumstances three of which are set out above. The section does not expressly prohibit such information even if obtained unlawfully being admissible in evidence. It does not prohibit expressly the production of such information pursuant to a subpoena issued by a court. It merely creates an offence subject to certain exceptions.

36   The form of this section needs to be compared with sections of the Evidence Act considered by the Court of Appeal in R V Young (1999 NSWCA 166). In that case certain classes of information were stated not to be admissible in evidence. Nonetheless the Court upheld the right of a party to the case to issue a subpoena requiring the production of such documents which were not admissible. For this reason DFT gains no comfort from Section 200.

37 However, there are further reasons. Paragraph (c) excludes disclosures made “for the purposes of any legal proceedings arising out of this Act or any other Act." Here the disclosure is sought for the purposes of the present legal proceedings which arise out of the conduct of DFT in serving a notice under Section 193 of the Act. In my view the disclosure required by the notice to produce comes within this paragraph.

38 Paragraph (f) also excludes disclosure made “with other lawful excuse”. Here the production is required by virtue of a notice to produce which has the affect of subpoena which in turn has the affect of an order of the court. One might ask what more lawful excuse could a person have for disclosing information than the compulsion of a court order. Accordingly, I am satisfied that Section 200 of the Retirement Villages Act does not protect DFT against producing documents under a notice to produce or a subpoena.

Legitimate Forensic Purpose.

39 The question here is whether Vasey has a legitimate forensic purpose in having access to the documents. Vasey argues that a condition precedent to the validity of the Section 193 notice is the belief by the investigator upon reasonable grounds that Vasey is able to provide documents or information relating to matters which constitute or may constitute a contravention of the Act or Regulations. The submission continues that an affidavit of the investigator setting out her beliefs and the basis of her reasonable grounds for those beliefs are included in her affidavit 4 September, and that Vasey should be entitled to view the documents referred to in that affidavit so that it can test the reasonableness of the beliefs of the investigator.

40   In RV Saleam (1999 NSW CCA 86 27 April 1999); Simpson J. delivering the judgment with which the other two members of the Court of Criminal Appeal concurred said:-

“In order to determine whether the applicant has identified a legitimate forensic purpose it is necessary to examine the issues he proposes to raise on his appeal against conviction (should an extension of time be granted) and his application for leave to appeal the order refusing a permanent stay”.

41   In other words a decision as to the existence of a legitimate forensic purpose depends upon a consideration of the issues raised in the matter which the applicant (in this case Vasey) seeks to establish.

42 In this case the issue in the claim for principal relief is the existence of a belief on reasonable grounds by the investigator of the matters described in Section 193 of the Retirement Villages Act.

43   In this connection, it is convenient to consider the decision of the Federal Court in the case of W A Pines v Bannerman 30ALR 559, upon which both parties rely.

44   In that case a notice had been given under Section 155 of the Trade Practices Act which, in its relevant parts, is as follows:-

“Where the Chairman…has reason to believe that a person is capable of furnishing information, producing documents, or giving evidence relating to a matter that constitutes, or may constitute a contravention of this Act . . .a member of the Commission may, by notice in writing served on that person, require that person to produce documents.”

45   At page 566 Brennan J, says:-

“In substance, the condition of the Chairman’s power is his having reason to believe and believing that the person to whom the notice is to be given can provide assistance in the investigation which the Commission has in hand, being an investigation of a contravention or of what reasonably can be suspected to be a contravention. That being the purpose and affect of Section 155(1), the difficulty which a recipient of a notice has in challenging the validity of the notice is substantial.”

46   His Honour goes on to say at page 567:-

“That is not to say that it is impossible to challenge the validity of a notice for non fulfilment of the condition of the power. The modern authorities are uniform in favour of judicial review of powers which are conditioned upon the existence of reasons for a specific belief. …. But such a challenge requires the applicant to show that the Chairman has no reason to believe that the person to whom the notice is given is capable of furnishing information, producing documents or giving evidence relating to the investigation which the Commission has in hand, being an investigation of a contravention or what reasonably can be suspected to be or to be about to be a contravention.”

47 On behalf of Vasey it is submitted that this is authority for the proposition that it is entitled to test the existence of the pre-requisite to the validity of the Section 193 Notice. DFT however, relies upon what follows in that judgment.

48   To make the challenge good, the appellant in Bannerman’s case sought discovery. Discovery was refused. The reasons for refusal are stated by Brennan J, as:-

“In the present case discovery is sought before there is a title of evidence to suggest that the Chairman did not have the requisite cause to believe which paragraph 6 of the Statement of Claim would put in issue.”

And later:-,

“This a case where a bare allegation is made by paragraph 6 of the statement of claim and, the paragraph being denied, the applicant seeks to interrogate the Chairman and ransack his documents in the hope of making a case. That is mere fishing.”

49   On behalf of DFT it is submitted that in the present case the onus of establishing lack of the requisite belief on reasonable grounds lies upon Vasey; there is not a tittle of evidence that the investigator lacked such belief on reasonable grounds and accordingly neither Vasey nor its legal representatives is entitled to access to the documents. It further points out that, in these circumstances, the notice to produce is no more than an aid in what is essentially a fishing exercise.

50   On behalf of Vasey it is submitted that this case is distinguishable on its facts from Bannerman’s case. In this case there is clear evidence in the affidavit and also in the schedules to the Section 193 Notice of certain allegations of fact. It is submitted that Vasey is entitled to see the documents to test whether those facts amount to matters which constitute or may constitute an offence under the Act or Regulations. For example, the schedule refers to complaints. Complaints per se are not matters which constitute or may constitute a breach of the Act on the part of Vasey.

51   In my view this aspect of the case is distinguishable from the facts in Bannerman’s case and Vasey does have a legitimate forensic purpose in having access to the documents which are included in the disputed paragraphs of the notice to produce. These are documents which are referred to in the affidavit of the investigator referred to above and filed in accordance with the order of Sully J.

Public Interest Immunity.

52   The extent and limits upon the doctrine of public interest immunity were considered in some detail by the Court of Criminal Appeal in the case of R V Young (1999 NSW CCA 166 7 July 1999).

53   At paragraph 128 the Chief Justice says:-

“It is now well established that where a claim for public interest immunity is made the court is required to balance two competing aspects of public interest: whether the public interest would be harmed by the production of the evidence as against whether the administration of justice would be frustrated or impaired if the evidence was withheld.”

The judgment continues:-

“The court is required to examine the documents itself to resolve the competing aspects of the public interest. . . However, before the Court will engage in the balancing exercise it must be satisfied that there is a legitimate forensic purpose in having access to the evidence.”

54   I have already held that there is a legitimate forensic purpose in Vasey having access to the evidence.

55   At paragraphs 130 and 131 His Honour says:-

“There are a number of recognised categories of class interest, including state secrets, cabinet minutes and evidence which would identify police informers.”
“131 The rationale for the doctrine of public interest immunity for government documents has been described as ‘the need to safeguard the proper functioning of the executive arm of government and of the public service’.. . . It would be fair to say however, that the earlier cases which recognised the existence of the doctrine placed much greater weight on the need to protect the internal workings and communications of government departments and officials than would be the case today, given the trend towards the greater accountability and openness of government.

56   The judgment goes on to explain that the rationale in respect of police informers is that unless the names of informers are protected, sources of information would dry up, thus hindering the police in the detection and prevention of crime.

57 I would interpolate here that this has been extended to other forms of law enforcement officers and in my view would include the names of informers or those who provide information to investigators performing duties under the Retirement Villages Act.

58   The bases upon which DFT claims public interest immunity are set out in the affidavit of Mr. C. J. Hanlon sworn 23 October 2001. The relevant parts of his affidavit are as follows:-

· In relation to the documents referred to in paragraphs 2 and 4 of Schedule A to the notice, the disclosure thereof would reveal the identity of a confidential source of information relating to the administration of the Retirement Villages Act, 1999.

· In relation to the documents referred to in paragraphs 5 and 7 of the Schedule to the notice, the disclosure thereof would prejudice the investigation of offences against the Retirement Villages Act, 1999 in that it would reveal decisions taken in formulating the department’s compliance strategy concerning retirement villages.

· In relation to the documents referred to in paragraph 6 of the Schedule to the notice, they are the same as those produced in response to paragraphs 2 and 7.

59   The deponent then goes on to say that the documents produced have been all organised into 6 Folders numbered 1 to 6.

60   Folder 1, he says, contains the following documents

“letters from Vasey to residents

documents provided by Vasey to residents (Statement of proposed expenditure and Statement of approved expenditure)
Village contracts between Vasey and residents
Disclosure statement with attachments provided to resident”

61   Public interest immunity is claimed in respect of these documents because disclosure to the plaintiff may reveal the defendant’s sources of information within the villages operated by the plaintiff. The residents are elderly and as well are vulnerable as they reside and must reside in the plaintiff’s premises. The particular copies of documents issued by the plaintiff may identify the residents to whom they were issued. The defendant’s investigations depends upon information being available from residents.

62   In accordance with the obligation upon the Court to conduct the balancing exercise by inspection of documents, I have looked at all of the documents in the six Folders produced by DFT.

63   Those in the Folder marked 1 are mainly Vasey’s own documents sent by it to certain residents. I do agree that the name and identity of those residents is protected by public interest immunity in a manner analogous to the protection given to the identity of police informers. Apart from this I can find no other aspect of public interest immunity.

64   Accordingly, I would allow access to Vasey of the documents in the Folder marked 1 provided that the names, addresses and phone numbers of residents appearing therein are deleted.

65   I note that counsel for Vasey informed the Court that such a deletion is acceptable to it.

66   Mr. Hanlon describes the documents in Folder 2 as follows:-

Acknowledgment letters from DFT to residents

Letters from residents to DFT, some with documents attached (a number of these documents have hand written notes on them by residents)
DFT file notes regarding telephone conversations with residents
Letters from Vasey to residents some with attachments
Letters from residents to Vasey
DFT file notes of meetings with residents
Notices from Vasey to residents
DFT internal e-mails regarding residents and complaints
DFT file notes of internal contacts (SSS and REI)

Correspondence to residents from third party re Vasey (Ministerial responses)
Nine DFT complaint files and contents (letters to and from residents and DFT file notes of conversations with residents)
DFT file and contents relating to a number of residents and their complaints.

67   Public interest immunity in respect of those documents is claimed because disclosure to the plaintiff may reveal the defendant’s sources of information within the villages operated by the plaintiff. The residents are elderly and as well as are vulnerable as they must reside on the plaintiff’s premises. The particular copies of documents issued by the plaintiff may identify the residents to whom they were issued. The defendant’s investigation depends upon information being available from residents.

68   I have inspected the documents in folder number 2. The only aspect of public interest immunity in these documents, in my view, is the identification of the residents who gave information to the department. Accordingly, I would allow access to all of the documents in Folder 2 with the deletion of the names, addresses and phone numbers which may identify the particular residents concerned.

Folder No. 3

69   Mr. Hanlon says that Folder 3 contains the following documents:-

Disclosure statement and attachments provided to resident
New village contracts between Vasey and resident
Letters from Vasey to residents
Invoices and receipts from Vasey to residents
Village contracts between Vasey and residents

Letters from TARS to DFT regarding resident and attaching village contract
Letters from resident to DFT attaching Vasey documents
DFT file notes regarding telephone conversations with residents
DFT file notes regarding meetings with residents
Letters from residents to DFT
DFT internal e-mails regarding residents

Two DFT files and contents (letters between residents and DFT and letters and documents from Vasey to resident)
Statements from residents

Vasey financial documents for year ending 31/3/01 provided to resident which contains handwritten markings.

70   Public interest immunity is claimed on the same grounds as with the documents in the first two folders.

71   Having inspected these documents, I am satisfied that there are two sets of documents in Folder 3 which in my view are protected from disclosure. They are:-

1. A document headed, Briefing for Assistant Director General 9 March 2000
2. Internal memorandum from legal officers of DFT "Re alleged breaches - Code of Practice" dated 10 May 2000.

72   These documents are clearly communications between senior officers of the Department and their legal advisers and the response from the legal advisers. Accordingly in my view they are entitled to protection from production in accordance with the principles of Legal Professional Privilege.

73   There is a further document which is protected from disclosure, namely an internal memo 01/47095 dated 31 July, 2001. This document in effect sets out the internal reasoning of the department relating to courses of action and in my view comes well within public interest immunity.

74   Access to the remaining documents in Folder 3 should be granted to Vasey subject to deletion of the names, addresses and phone numbers of residents appearing thereon.

Folder Number 4

75   Folder number 4 is said by Mr. Hanlon to include, in the main, communications, contracts, invoices and receipts between Vasey and residents. Public interest immunity is claimed on the same bases as claimed in respect of the documents in Folders 1, 2 and 3.

76   In my view after having inspected the documents, they are in the main Vasey’s own documents and, subject to the deletion of the names, addresses and phone numbers of residents appearing on them, access should be granted to Vasey.

Folder No. 5

77   Folder number 5 is said by Mr Hanlon to contain

Letters from DFT to residents
DFT file note regarding meetings with residents
DFT notes regarding telephone calls with residents
DFT file notes regarding telephone calls with residents

78   Public interest immunity is claimed for the same reasons as those mentioned in respect of the documents in the first four Folders.

79   I have inspected the documents in Volume 5 and note that they include documents which are already before the Court. They do, however include four documents which in my view should not be disclosed. They are:-

1. Ministerial briefing dated 25 May 2001
2. Executive briefing number 01/08944 dated 25 May 2001
3. Ministerial briefing number 01/2617 dated 10 July 2001
4. Ministerial briefing number 01/3671 dated 31 August 2001.

80   These relate to communications with Ministers and in my view are subject to public interest immunity.

81   The remaining documents in Folder 5, subject to the deletion of the names, addresses and phone numbers of residents appearing therein should be disclosed to Vasey.

Folder Number 6

82   Mr Hanlon says that Folder 6 contains:-

DFT file notes regarding Vasey

Vasey annual report for 1999 year - provided by residents and containing some with handwritten notes
DFT internal memos re Vasey relating to disclosure documents, complaints and the notice to produce
DFT examination results of disclosure statements provided to resident
DFT examination result of Village contract provided to resident

DFT summary of complaints, possible remedies, possible breaches and documents required
DFT handwritten notes of meeting with Vasey
Disclosure statement provided to DFT marked with discrepancies
DFT handwritten notes regarding situation at Elizabeth Court
DFT notes regarding possible breaches and possible undertakings.

83   Public interest immunity in respect of these documents is claimed on the same grounds as the former documents. In addition such immunity is claimed in respect of DFT internal documents in Folder number 6 relating to assessment of the plaintiff’s documentation and analysis of complaints because these would reveal decisions taken in formulating the Department’s compliance strategy concerning retirement villages.

84   There is much force in the claim just mentioned. I also agree with the statement in paragraph 16 of Mr Hanlon’s affidavit:-

“The material contained in folder CJH6, tends to indicate the manner in which the department makes decisions concerning how it will secure compliance by persons who may be in breach of legislation. It is undesirable that this material be made available outside the department as it will inhibit the effectiveness of the department’s compliance activities."

85   Accordingly I would not allow access to the following documents:-

1. Internal memorandum Adam Heydon to Michael Finch dated 22 May 2001.
2. Internal memorandum Dean to Hanlon, File No. 01/08944 dated 15 June 2001
3. Document headed ‘Elizabeth Court Retirement Village -Concord: Possible Breaches of Retirement Villages Act 1999 and issues for consideration of appointment of Enquirer.
4. Briefing note update dated 13 September 2001.

86   I allow access to the remaining documents in Folder 6 with the deletion therefrom of the names, addresses and phone numbers of residents.

I now invite submissions as to costs of these interlocutory proceedings.

* * * *


I certify that this and the preceding 21 pages is a true copy of reasons for Judgment herein of the Honourable Acting Justice Cooper

Associate to Acting Justice Cooper…………………………….

Last Modified: 01/03/2002