Winky Pop Pty Ltd v Mobil Refinery Australia Pty Ltd
[2013] VSC 315
•17 June 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
S CI 2009 6345
BETWEEN
| WINKY POP PTY LTD (ACN 082 744 769) and OR AUSTRALIA PTY LTD (ACN 073 102 520 | Plaintiffs |
| and | |
| MOBIL REFINERY AUSTRALIA PTY LTD (ACN 004 300 163) and THE STATE OF VICTORIA | Defendants |
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JUDGE: | DIGBY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 June 2013 | |
DATE OF JUDGMENT: | 17 June 2013 | |
CASE MAY BE CITED AS: | Winky Pop Pty Ltd & Anor v Mobil Refinery Australia Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 315 | First Revision: 24 June 2013 |
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EVIDENCE – Public / State interest immunity – subpoenaed documents prepared to brief Minister in relation to possible rezoning of a Planning Scheme under the Planning and EnvironmentAct1987 (Vic) – production and inspection which may prejudice the proper functioning of government – Evidence Act 2008 (Vic) s 130 – confidentiality - client legal privilege – relevance.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr C Scerri QC with Ms M Foley | King & Wood Mallesons |
| For the First Defendant | Mr P Riordan SC with Ms P Neskovcin and Ms F Spencer | Ashurst |
| For the Second Defendant | Mr S Horgan SC with Ms E Latif | Clayton Utz |
| For the Minister for Planning and the Department of Planning and Community Development | Ms R Sharp | Victorian Government Solicitor |
HIS HONOUR:
On 24 May 2013, the Minister for Planning for the State of Victoria and the Department of Planning and Community Development (“the DPCD”) were each served with a Subpoena for the Production to the Prothonotary of the Supreme Court of Victoria, dated 23 May 2013 (“the subpoenas”) seeking, at the Plaintiffs’ instigation, the production of certain documents.
By letter dated 30 May 2013 the Victorian Government Solicitor’s Office notified, on behalf of the Minister for Planning and the DPCD, that the Minister raised an objection to producing part of the subpoenaed materials, namely a briefing note to the Minister dated 21 March 2013 which fell within the scope of the subpoenas.
By submissions dated 7 June 2013, amplified in oral argument on 11 June 2013, the Minister for Planning and the DPCD enlarged upon the scope of their objections to production and inspection of the subpoenaed documents, on several bases, as follows:
1.1 Ministerial briefing dated 21 May 2013 together with 6 attachments (the briefing) and 15 extra documents (the unnumbered attachments to the briefing) (Exhibits A–G and HI–XYZ to Confidential Exhibit “JSM-1” to the affidavit of Jane Susan Monk sworn 7 June 2013 (the Monk affidavit));
Production and inspection objected to in relation to the redacted parts of the Briefing documents as specified in paragraph 9 of the Monk affidavit, on the basis that they contain matters of State, and in relation to Part 5 on page 4 because it contains legal advice. The Monk affidavit, paragraph 16 also specifies additional documents said to be objected to because they contain matters of State.
1.2 a planning file maintained by the DPCD, containing 82 documents (documents 1 – 82 in Annexure A to the Monk affidavit );
Production and inspection is objected to in relation to the documents specified in paragraph 16 of the Monk affidavit (with corrections advised by Counsel for the Minister on 11 June 2013), on the bases that they contain matters of State or opinions of municipal council staff and the Department of Business and Innovation provided to the DPCD in confidence or such documents contain advice of senior members of the DPCD to senior members of the Minister’s staff, or advice and recommendations from DPCD to the Minister, including in relation to a proposal which is yet to be determined by the Minister.
Paragraph 17 of the Monk affidavit also notes the documents in the “planning file” (Monk affidavit, Annexure A, documents 1–82) as confidential and sensitive and in the nature of internal working documents and unfinished drafts in relation to a planning decision of the Minister that is not yet made.
Paragraph 18 of the Monk affidavit (with corrections advised by Counsel for the Minister on 11 June 2013), also identifies documents in the planning file to which there is objection to production on the basis that those documents are said to be irrelevant to the issues in the substantive proceeding.
1.3 a legal file maintained by DPCD Legal department, containing 22 documents (documents 84 – 105); and
Objection is taken to production of a number of these documents, as specified in paragraph 19 of the Monk affidavit, on the ground of client legal privilege. Document 105, referred to in the Minister and DPCD’s written submissions is however not specified in the Monk affidavit, paragraph 19.
1.4 47 emails with various attachments (documents 106 – 152).
These documents are not the subject of an objection to production or inspection, except for the documents identified in the Monk affidavit at paragraph 16(c) and (e), which are objected to as in paragraph 16 of the Monk affidavit on the bases referred to in paragraph 1.2 above (see paragraph 14 of the Monk affidavit).
The substantive proceeding and relevant background
In the substantive proceeding the Plaintiffs, which are property developers, seek relief against Mobil Refinery Australia Pty Ltd (Mobil) in nuisance, negligence and for compensation under the Pipeline’s Act 2005. The Plaintiffs seek an injunction requiring both Mobil and the Second Defendant, the State of Victoria, to remove what the Plaintiffs allege to be the contamination resulting from a leak in excess of 486,000 litres of petroleum hydrocarbon from a pipeline, referred to as Mobil Pipeline No 1, which the Plaintiffs allege has heavily contaminated their land.
The Plaintiffs’ claim against the State of Victoria is in negligence and alleges that the State has breached a duty of care to the Plaintiffs by reason of it failing to properly supervise the regulatory regime and licence conditions relating to the operation and maintenance of Mobil Pipeline No 1.
The Plaintiffs seek a mandatory restorative injunction requiring Mobil to remediate the Plaintiffs’ land so as to enable its use and development for residential purposes. As an alternative to the injunctive relief sought, the Plaintiffs seek damages for the losses they have sustained as a consequence of the contamination to their land. The losses claimed by the Plaintiffs include the loss of the significant commercial opportunity that the land presented to the Plaintiffs. The commercial opportunity, to which the Plaintiffs point, was the opportunity to develop the subject land. The Plaintiffs allege that had the contamination referred to not occurred they would have proceeded with development of the Plaintiffs’ land for residential purposes and that there was a reasonable prospect of commercial success in that regard.
The Plaintiffs’ evidence is directed to establishing that the opportunities presented by the Plaintiffs’ land included to have it rezoned and developed for residential purposes prior to the leak for which Mobil and the State of Victoria are said to be responsible. At part of its case the Plaintiffs’ seek to establish that the subject land is a prime candidate for rezoning having regard to the strategic and physical location of the land and that rezoning to Residential 1 Zone is likely to occur. The Plaintiffs assert consequential losses of profits estimated to be as high as approximately $175 million.
The Planning Scheme applicable to the Plaintiffs’ land has identified it as falling within a Strategic Redevelopment Area (that is the industrial use of the land is now regarded as redundant) and has specifically identified the Plaintiffs’ land as suitable for residential development.
The Minister, the Plaintiffs assert, has “called in” the planned decision on the rezoning application from the Hobson’s Bay City Council (the Council) and it is anticipated that the Minister will make a decision on that application at some time in the future.
The Plaintiffs argue that in making the decision on the rezoning application, the Minister is exercising an administrative function, and one which is susceptible to judicial review. The Plaintiffs point to this aspect in support of its argument that the present relevant function being undertaken by the Minister is in the nature of an administrative decision on the rezoning application by contrast to being a matter relating to the determination of “government policy” and is not a “matter of State”.
The First Defendant’s case includes its response to the Plaintiffs’ claim for loss of profits/diminution in value (claim by reference to loss of profits) that the Plaintiffs’ claim should fail because, inter alia, the Plaintiffs have not lost an opportunity to develop the land residentially and further there is no realistic prospect of the land being rezoned for residential development in the near future. Mobil says it is highly unlikely that the Plaintiffs’ land will be rezoned for residential development.
The State of Victoria’s case relevantly includes the State’s acknowledgment that despite the Plaintiffs’ efforts, the Winky Pop land is, and remains, zoned for Industrial Use. The most recent application for planning scheme amendment and permit involving the Winky Pop land, C 74, is yet to be determined (Second Defendant’s opening submissions dated 27 May 2013 [12]). In paragraph [16] the Second Defendant submits:
The question of the highest and best use of the Plaintiffs land is contested. On the basis of constraints identified in the Winky Pop land, Mr Brown (Mobil’s valuation expert) gives his opinion that the highest and best use of the Winky Pop land before and after the Mobil leak is industrial. The second defendant agrees with this comment.
I note however that that in submissions on 12 June 2013 Mr Horgan SC for the State of Victoria withdrew this agreement on behalf of his client. I deal with this matter later in this ruling.
The Minister and the DPCD objections
As summarised above, a large number of documents are the subject of the Minister and DPCD objection to production and inspection. Helpfully, the 7 June 2013 affidavit of Jane Susan Monk, Director, Planning Statutory Services at the DPCD, identifies the particular documents in relation to which objection is taken and groups those documents by reference to the heads of objection taken by the Minister and the DPCD. The Monk affidavit states:
[10] On 4 June 2013, the DPCD planning file in relation to the C74 amendment was produced to the Prothonotary (the planning file) in sealed envelopes, together with a file of the Legal department from the DPCD (the legal file).
[11] By letter dated 4 June 2013, the Prothonotary was advised that the Minister and the DPCD made an objection to producing parts of the files on the grounds of client legal privilege and public interest immunity.
Summary of response to the subpoena and privilege claims
[15 ] For ease of reference, attached as Annexure A to this affidavit is a schedule of all the documents produced by the DPCD, from the planning file (documents 1 – 82), the legal file (documents 84 – 105) and the emails (documents 106 – 152).
[16] Objection is taken to production of the following documents (as numbered in Annexure A) because they contain matters of state:
(a)1 (in part), 23 (which is a copy of Attachments 6a and 6b of the Briefing with some hand written notes), 27 (in part, which is a reply to document 1), and Attachments 6a and 6b of the Briefing because they contain opinions of council staff provided to the DPCD in confidence;
(b)Document 110 (in part) because it contains opinions of the Department of Business and Innovation staff provided to the DPCD in confidence;
(c)10 and 80 (which are duplicates of each other) and 143 (which is the email sending the advice) because they contain advice from a senior member of the DPCD to a senior member of the Minister’s staff (the draft chronology attached to documents 10 and 80 is not the subject of objection); and
(d)66 (in part) and 72 (in part) which are copies of the same document (72 bears some hand written notes of a Departmental officer) - because they contain advice and recommendations from the DPCD to the Minister; and
(e)the Briefing (in part), the unnumbered attachments to the Briefing (in full) and documents 111 – 112 (in part) because they contain advice and recommendations from the DPCD to the Minister in relation to a proposal that is yet to be determined by the Minister.
[17] The planning file contains a large number of documents, most of which there is no objection to producing and which will be provided together with this affidavit. I believe it is very important to note that these documents are internal working documents, many are early unfinished drafts of the DPCD, and that they were prepared in relation to a planning decision of the Minister that is yet to be made. The documents are confidential and sensitive.
[18] Objection is taken to production of the following documents (as numbered in Annexure A) because they are irrelevant:
(a) 7, 17, 18, 19, 21, 62 – 65, 67 and 75 – 78. They are draft versions of documents that were never provided to the Minister and have no bearing on any decision the Minister may or may not make in response to the Briefing.
[19] Objection is taken to production of the following documents (as numbered in Annexure A) because they are the subject of client legal privilege:
(a)the Briefing (in part), 84 (in part), 87 (in part), 88 (in part), and 96 – 100 (in part) because they contain legal advice; and
(b)85, 86, 89 – 95 and 101 – 104 because they are documents and instructions provided to the lawyer for the dominant purpose of providing legal advice.
The Monk affidavit also states in relation to the bases for the claim for public interest immunity in relation to those documents asserted as amenable to that claim:
Public Interest Immunity claims
[22] Public Interest Immunity (PII) is claimed over the documents and parts of documents detailed in paragraph [9] above.
[23] I have reviewed all the documents the subject of a claim for PII and identified a number of claims because their release would be harmful to the functioning of the Government, as set out below.
[24] The Briefing paper is a final brief dated 21 March 2013 from the DPCD to the Minister. It was prepared to assist the Minister to make a decision whether to prepare, adopt and approve Amendment C74 to the Hobson’s Bay Planning Scheme and to decide upon the nature of the planning controls in that amendment.
[25] A primary concern regarding the portions of the Briefing over which PII is claimed is that those portions provide advice and recommendations to the Minister in relation to a decision that has not yet been made. The issues that are discussed relate to proposed amendment of planning controls over land which is currently the subject of Supreme Court proceedings in which the subpoenas have been served.
[26] I believe that if advice and recommendations made to the Minister in relation to the exercise of his statutory functions were able to be disclosed to the parties before the decision on contentious matters were made, there is a real risk that it could interfere with the decision making process of the Minister. This could for example expose the Minister to criticism for a decision he has yet to make, and this could interfere with the decision-making process
[27] Another danger with releasing these documents would be a change in process resulting in the Minister no longer receiving a reliable and comprehensive form of written advice to consider on important matters of public policy and administration, a result that is contrary to the public interest.
Advice and recommendations to the Minister in a situation where the Minister is yet to make a decision
[28] Objection is taken to releasing those parts of the Briefing that reveal the options and recommendations that were made to the Minister. The unnumbered attachments to the Briefing, prepared in accordance with usual practice, are consistent with one of the options identified in the brief.
[29] The Briefing was dated 21 March 2013, however a decision has not yet been made by the Minister.
[30] The Rationale and recommendations were prepared for the purpose of directly briefing the Minister. Part of that process includes drafting and providing draft versions of the documents required to be signed in order to implement the decision in respect of one of the identified options. Departments prepare those documents in relation to the option (or options) that they recommend to the Minister. In the present case, those documents were prepared and provided to the Minister.
[33] There is no way of knowing how the Minister will respond to the Briefing. The Minister may approve, not approve, note or return the brief with a request for further work or information. That the DPCD has recommended a particular course of action is not determinative of the outcome of the Minister’s deliberations.
[34] The result of releasing these documents would lead to a change in process resulting in the Minister no longer receiving a reliable and comprehensive form of written advice to consider on important matters of public policy and administration, a result that is contrary to the public interest.
[35] Further, the release of the documents would be likely to have an adverse impact on government’s ability to obtain full and candid advice in similar matters. There would be no confidence that views and opinions of the DPCD would remain confidential.
Opinions of Council Staff provided in confidence
[40] In preparing Ministerial briefings, the DPCD relies on the professional views of relevant Council staff, as well as proponents for amendments and opposing parties. The views of Council staff are sometimes provided on a confidential basis. It is often the case that issues which come before the Minister may have been considered by Council. It is important for DPCD to understand all of the issues and competing interests in relation to proposed amendments. The ability to receive the honest views of Council officers with local knowledge of the area is imperative in good decision making.
[41] Attachments 6a and 6b to the Briefing relate to confidential communication between officers of local government and the state planning officers. A review of those documents reveals that they were provided on a confidential basis. A copy of Attachments 6a and 6b is Document 2, which also has some hand written notes of DPCD Staff. Disclosure of Attachments 6a and 6b would tend to mute and impede frank discussion on future matters, including unrelated matters.
In their submissions to the Court both the Minister, the DPCD and the Plaintiffs recognise that in determining a claim of public interest immunity the Court must determine whether an established public interest in the non-disclosure of the subject documents is outweighed by public interest in those documents being disclosed. In particular, the Plaintiffs express the competing interest to be balanced as between the public interest in the confidentiality/secrecy of a matter of State being preserved and the administration of justice in relevant material being disclosed to litigants.
In essence the Minister contends, by his objections, that:
(a)If advice and recommendations made to the Minister in relation to the exercise of his statutory functions were able to be disclosed to the parties before the decision on contentious matters was made, there is a real risk that it could interfere with the decision making process of the Minister including exposing the Minister to criticism for a decision yet to be made and, possibly, interfering with the decision making process;
(b)Providing access to and inspection of the documents would amount to a change in the process resulting in the Minister no longer receiving a reliable and comprehensive form of written advice to consider on important matters of public policy and administration;
(c)The result of releasing materials relating to the rationale and recommendations prepared to brief the Minister would lead to a change in the process usually undertaken resulting in the Minister no longer receiving a reliable and comprehensive form of written advice to consider on important matters of public policy and administration;
(d)The release of the documents would be likely to have an adverse impact on the government’s ability to obtain full and candid advice on similar matters; and
(e)There would be no confidence that views and opinions of the DPCD would remain confidential.
Both the Minister and the Plaintiffs also refer the Court to s 130 of the Evidence Act 2008 (the Evidence Act) which deals with claims based on public interest immunity. Section 130 of the Evidence Act provides:
(1)If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
…
(4)Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would—
(a)prejudice the security, defence or international relations of Australia; or
(b)damage relations between the Commonwealth and a State or between 2 or more States; or
(c)prejudice the prevention, investigation or prosecution of an offence; or
(d)prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or
(e)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or
(f)prejudice the proper functioning of the government of the Commonwealth or a State.
(5)Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters—
(a)the importance of the information or the document in the proceeding;
(b)if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is an accused or the prosecutor;
(c)the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d)the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e)whether the substance of the information or document has already been published; …
In Murdesk Investments Pty Ltd v The Secretary of the Department of Business and Innovation[1], Dixon J listed a number of factors and considerations identified as relevant to the consideration of the claim of public interest immunity as follows:
8.1. Whether the objection to disclosure is a class claim or a content claim;
8.2. Whether a representative of government has supported nondisclosure of the information or document;
8.3. The subject matter of the information or document, for example, whether it relates to national security or, on the other hand, commercial matters;
8.4. Whether the information or document relates to Cabinet deliberations or lower levels of government;
8.5. Whether the information or document has contemporary importance or is only of historical interest; and
8.6. Whether the information or document was required on the basis that it would be kept confidential.
[1][2011] VSC 436.
The Minister, the DPCD and the Plaintiffs also submit that once the Plaintiffs discharge their initial onus of establishing the legitimate forensic purpose and/or relevance of the information or documents sought, which forensic purpose is, I consider, established by the identification of the issues in this proceeding as summarised in paragraphs 4 to 13 above and the potentially relevant nature of the documents objected to, the Court then undertakes a three stage process in determining the claim of public interest immunity. Those three stages are to:
(a)determine whether there is a public interest in the non-disclosure of the information in question;
(b)determine whether there is a public interest in the disclosure of the information in question; and then
(c)balance the public interest in disclosure against the public interest in non-disclosure, in order to decide whether or not the information should be disclosed.[2]
[2]Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604, 616-617; Alister v R (1984) HCA 85; (1984) 154 CLR 404, 412. The application of Commonwealth v Northern Land Council to the interpretation of s 130 of the Evidence Act was confirmed in State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60, at [43]. See, also, Murdesk Investments Pty Ltd v The Secretary to the Department of Business and Innovation [2011] VSC 436 at [22].
The Minister also submits that in the balancing exercise to be undertaken by the Court the scales do not begin evenly balanced. The Minister submits that in respect of many kinds of documents the scales begin tilted in favour of non-disclosure, for example where it is established that the document belongs to a class which attracts immunity, Commonwealth v Northern Land Council[3] and in such cases before documents are released the scales must tip decisively in favour of disclosure, Burmah Oil Co Ltd v Bank of England[4].
[3][1993] 176 CLR 604 at 618.
[4][1980] AC 1090 at p 17.
The principles applicable to a claim for public interest immunity at common law were summarized by McLellan CJ in the New South Wales Land and Environment Court in Murrumbidgee Ground-Water Preservation Association v Minister for Natural Resources,[5] as follows:
[5][2003] NSWLEC 322 at [19].
1.There is no absolute immunity from production and inspection of cabinet documents: Sankey [v Whitlam [1978] HCA 43; (1978) 142 CLR 1] at 43, 58-59, 95-96; [Commonwealth v] Northern Land Council [[1993] HCA 24; (1993) 176 CLR 604] at 616. In this context “cabinet documents” extends to:
(a)Cabinet minutes or other records of Cabinet discussions and records of discussions between heads of departments;
(b)papers prepared as submissions to Cabinet;
(c)any documents which relate to the framing of government policy at a high level Sankey at p 39.
2.The general rule is that a 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.The public interest has two aspects: the protection of government from the harm which may be caused by disclosure and the interest in ensuring that justice can be effectively administered: Sankey at 38, Conway v Rimmer [1968] UKHL 2; (1968) AC 910 at 940.
4.The court must weigh the competing elements of the public interest: Sankey at 43, 60-64, 98-99.
5.A claim for immunity for a class of documents as opposed to a claim in relation to individual documents will be upheld only if it is really necessary in the public interest or the proper functioning of the public service: Sankey at 39.
6.The court has power to inspect the documents in order to determine any claim. However, there remains some controversy as to the circumstances in which that power should be exercised. If the documents clearly fall into a class which attracts immunity they should not be inspected: Northern Land Council at p 617.
7.Documents recording the actual deliberations of cabinet are more likely to attract immunity than documents prepared outside Cabinet such as reports or submissions for the assistance of Cabinet: Northern Land Council at 614-615.
8.Documents relating to a topic which is current or controversial will attract a high level of confidentiality: Northern Land Council at 617-618.
9.Documents in relation to a matter which has passed into history attract a lesser level of confidentiality, as do documents which may have been already published.
10.The intended use of documents, particularly if required to found a defence to a criminal charge, is a relevant consideration. Where a person’s liberty is at stake production is more likely to be ordered: Sankey at 42 and 61-62.
11. (a) It is unlikely that disclosure of the records of Cabinet deliberations upon current matters would be appropriate in civil proceedings: Northern Land Council at 618.
(b)Documents and communications passing between a Minister and the head of his department relating to cabinet proceedings and material prepared for Cabinet are likely to be protected: at Sankey 99.
(c)Reports relating to important matters of policy between public servants and Ministers or between senior public servants also warrant a high level of protection: at Sankey 99.
That summary has been accepted and applied in a number of cases: by Mansfield J in Sportsbet Pty Ltd v Harness Racing Victoria (No 4),[6] by Jagot J in Betfair Pty Ltd v Racing New South Wales (No 7),[7] and by Dixon J in Murdesk Investments Pty Ltd v The Secretary to the Department of Business and Innovation.[8]
[6][2011] FCA 196 at [3].
[7][2009] FCA 1140; (2009) 181 FCR 66 at [5].
[8][2011] VSC 436 at [22].
The Minister submits that in order to determine the public interest and secrecy or confidentiality, the question for the Court is whether breaching the confidentiality or secrecy of information or a document by adducing it into evidence will prejudice in some way the proper functioning of government.
The Minister submits that the Monk affidavit identifies four different types of communications enlivening the public interest in preserving the secrecy and confidentiality of the documents concerned. Those four different types of communications are:
14.1 advice and recommendations from the DPCD to the Minister;
14.2 advice from a senior member of the DPCD to a senior member of the Minister’s staff;
14.3 advice and recommendations from the DPCD to the Minister in relation to a proposal that is yet to be determined by the Minister; or
14.4 opinions of council staff provided to the DPCD in confidence.
The Minister also submits that there is a relevant public interest in:
(a)The importance of open communication to the proper functioning of government, here in the form of the DPCD and the Minister for Planning, and the ability of the Minister to make decisions without undue influence and interference.
(b)Recommendations contained in briefing papers to Ministers which are an important function of government Departments. It is submitted that such recommendations embody the work of the relevant Department, including the Department’s views as to the most appropriate decision. In circumstances where a decision is yet to be made, in order not to prejudice the making of those decisions, Ministers should be able to consider the recommendations without further influence (see paragraphs 26 and following of the Monk affidavit).
(c)Keeping Briefing papers to the relevant Minister secret, in particular because of the subject matter of this particular briefing paper. There these materials relate to a planning scheme amendment, a significant document in the business of Government. The Minister and the DPCD note that the amended Planning Scheme is required to be tabled in Parliament (pursuant to s 38 of the Planning and Environment Act 1987). The Minister and the DPCD submit that a review of the options and recommendations, as the Court has been invited to do, reveal the very nature of the subject matter.
The Minister cites the statement of the High Court in Northern Land Council at 615:
… the disclosure of the deliberations of the body responsible for the creation of state policy at the highest level, whether under the Westminster system or otherwise, is liable to subject the members of that body to criticism of a premature, ill-informed or misdirected nature and to divert the process from its proper course …
Counsel for the Minister and the DPCD rightly recognise however that the above observations by the High Court were made in relation to the deliberations of Cabinet rather than documents in the nature of recommendations by a Department to its Minister.
Documents created at departmental level below Cabinet level are nevertheless amenable to claims for public interest immunity, Betfair Pty Ltd v Racing New South Wales (No 7)[9]. The Minister contends, and I accept, that reports relating to important matters of policy between public servants and Ministers or between senior public servants, such as documents 10 and 80 and 143 of the subject documents, arguably warrant a high level of protection in and of themselves, Sankey v Whitlam[10].
[9](2009) 181 FCR 66
[10](1978) 143 CLR 1 at 99.
Further, the Minister contends that documents relating to a topic which is current or controversial will also attract a high level of confidentiality - see Northern Land Council at 617-618. The Minister and the DPCD contend that here the subject matter of the relevant briefing is both current and controversial and emphasises that the Minister is yet to make a decision about the briefing and the subject matter of the briefing and emphasise that those matters, together for example with the matters referred to in documents 66 and 72, are in issue in the present proceeding.
Further, the Minister and the DPCD submit that open communication between the DPCD and council officers who are aware of the relevant issues is necessary to ensure that the best possible decisions are made taking into account all of the competing interests. Review of the relevant material indicates that it contains the officers’ professional views as to the relevant issue. That those officers’ views are provided on a confidential basis adds weight to the claim (see paragraphs 40-41 of the Monk affidavit).
The Plaintiffs contend that before public interest immunity is sufficiently engaged so as to require the Court to balance the interests referred to in s 130(1) of the Evidence Act the Court must be satisfied on proper material that the relevant documents are of such sensitivity and currency that their disclosure would cause injury to the public interest - see (“heavy burden”) State of Victoria v Gregory John Brazel[11].
[11](2008) 19 VR 553 at [25] and [68]
The Plaintiffs also submit that, properly characterised, the Minister’s claim for public interest immunity is based upon the content of particular documents, rather than on a class of documents. I note that the Minister does not submit otherwise. An argument in support of public interest immunity based on a recognised class of documents, invoking protection from disclosure in that regard, involves the application of somewhat different considerations by the Court and usually warrants the non-production of the subject document without the need to evaluate the harm which the disclosure of that document may cause, Brazel at [44].
The Plaintiffs further argue that one of the factors to be taken into account in the balance is whether the information or documents relate to Cabinet level deliberations or to the lower level deliberations and functioning of government. The Plaintiffs submit that in this matter the documents comprising redacted portions of the Briefing Note and the Recommendation Documents are not “Cabinet paper(s) or submission” and do not relate to Cabinet deliberations but rather are properly characterised as documents pertaining to the functions of lower levels of government.
Further, the Plaintiffs submit that the documents described as communications with Ministerial Staff are also documents arising at an even lower level than that of any briefing to a Minister. Thirdly, the Plaintiffs submit that Council Officers Opinions are documents created at a lower level again and that those documents are neither Council Documents nor State Government documents but are merely documents recording the opinions of some Council Officers. The Plaintiffs’ submission is that none of these documents fall within a “class” of documents which ordinarily attracts public interest immunity nor will their disclosure injure the public interest or impede the proper function of the public service.
Section 130(4) of the Evidence Act, without limiting the circumstances in which information or a document may be taken to relate to matters of State, provides that certain types of information and documents are of that species, if adducing them as evidence would, for example, prejudice the security, defence or international relations of Australia or disclose or enable a person to ascertain the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State. Included in this non-exhaustive list of matters of State is information or documents which, if adduced as evidence, would prejudice the proper functioning of the government of the Commonwealth or a State, as provided in s 130(4)(f) of the Evidence Act. It is this subsection of the Evidence Act which the Minister and the DPCD appear to primarily rely on in this regard.
The Plaintiffs do however concede that although no document, regardless of its class or nature, can be said to be invariably immune from production, there is a spectrum of documents which may attract public interest immunity, ranging from those at the highest level, for example Cabinet documents, to those at lower levels, such as reports of junior Departmental officers. Both the objectors and Plaintiffs cite Betfair as authority for the latter proposition.
The Plaintiffs contend that it is also a factor weighing heavily in the balance in favour of the disclosure of all the documents sought to be protected by public interest immunity in this application that the State is itself a party to the substantive proceeding and in that proceeding the State actively arguing that the best use of the subject land is industrial use. The Plaintiffs point out that there are relevant tensions arising from the State, on the one hand “actively arguing that the best use of the land is industrial”, while the Minister is currently considering a rezoning application for the same land.
The Plaintiffs say further that the stance which the State has taken in this proceeding is a very strong factor against allowing the State to withhold from the Plaintiffs, documents that are before the Minister in relation to the rezoning application and which may well undermine the State’s submissions and position in the substantive litigation.
On this aspect, during submissions, Mr Horgan SC for the State of Victoria referred to the State’s Opening submission [16] and conveyed his instructions to withdraw the State’s agreement with the opinion of Mr Brown, consultant and proposed witness for the First Defendant, that the highest and best use for the Winky Pop land, before and after the Mobil leak, is industrial. Mr Horgan clarified that this was no longer any part of the State’s case in this proceeding.
Mr Horgan also clarified that his instructions were that, notwithstanding the Minister’s current processes relating to consideration of the possible rezoning of land in Williamstown Victoria, including the Plaintiffs’ land, the local Hobson’s Bay Counsel was itself still considering rezoning Amendment C74. Mr Horgan also refutes that there has been a “calling up“ by the Minister of the matters to be decided.
At all events it appears that because of complaints by the Plaintiffs’ to the DPCD and the Minister (and the Hobson’s Bay Council) concerning the Council’s slow progress in relation to the relevant proposed planning scheme amendment, the DPCD has briefed the Minister to consider intervening and assisting in relation to this process of rezoning the subject land. Relevantly, that Ministerial briefing process has occurred and produced documents of potential relevance to this proceeding, albeit that the Minister and the DPCD resist the production of many of those documents on the grounds detailed above. Accordingly, it is not pivotal to the present objections whether there has been a “calling up” of the rezoning decision by the Minister or whether it can be said that the local Council still has Amendment C 74 before it.
Similarly, whilst acknowledging Mr Horgan’s withdrawal of the State of Victoria’s earlier apparent agreement as to the highest and best use of the subject land the Second Defendant’s case, which does not accept the rezoning of the Plaintiffs’ land as likely (or, it would seem now, unlikely) (see the Second Defendant’s Opening [40]) itself renders relevant and potentially material documents which may establish what the State of Victoria itself intends to do, or will do, in relation to the status of that land.
The Plaintiffs’ responses
The Plaintiffs submit that in this case the potential impact of disclosure is far outweighed by the importance of the interest in the administration of justice which supports disclosure. Here, the Plaintiffs submit that disclosure of the subject documents in the context of the issues in this proceeding allow the Court to identify a real likelihood that production of the documents sought will affect the outcome of the case and accordingly that there is a real likelihood of injustice if the documents sought are not disclosed because they are at least essentially relevant to the Plaintiffs’ case.
In short the Plaintiffs submit that in the interests of the administration of justice the balance favours disclosure because -
(i)The documents constitute evidence of critical importance to the Plaintiffs’ case, and the Plaintiffs cite amongst other things the outlined position of the parties at the opening of their cases;
(ii)The State is arguing, in substance, that rezoning is not likely. The Plaintiffs say further that the potential conflict between the State’s role as both a defendant in the proceeding and the decision maker in relation to a matter of pivotal importance in the proceeding, namely the possible rezoning of the Plaintiffs’ land, is a persuasive factor in the balancing exercise in favour of disclosure.
On this issue I again refer to what I have said above as the revised position which the State of Victoria have taken as to the best use of the subject land.
(iii)The position of the Minister and DPCD in relation to rezoning is of considerable importance because it would effectively answer a key question for determination in the case namely whether it is likely that the Plaintiffs would (prior to the leak) have achieved a rezoning of their land to residential use. On the Plaintiffs’ case the likelihood of the Plaintiffs achieving a rezoning is also clearly relevant to the standard of clean up required of the land and also to the Plaintiffs’ alternative claim for damages.
(iv)The Plaintiffs also point to the possible relevance of the unredacted Briefing Note and other withheld documents submitting that they may reveal whether the contamination of the Plaintiffs’ land from the Mobil leak has had a bearing on the rezoning of that land, and ultimately, the residential development outcome. The Plaintiffs point out that this is also a matter of significant potential relevance to the Plaintiffs’ damages claim. Mobil contends in this regard that the pre-existing contamination, rather than the contamination caused as a result of the leak, would have, in any event, precluded the rezoning of the Plaintiffs’ land.
(v)The Plaintiffs submit that the assessment of the impact of the contamination on the rezoning prospects, and how that is addressed in any recommendation in the Briefing Note and the other withheld documents, goes directly to these important issues in the proceeding.
(vi)Further, the damages issues in the proceeding which are informed by the likelihood of the Plaintiffs’ land being able to be rezoned residential is heightened both because in the proceeding Mobil has conceded liability and left the Court to determine the question of what, if any, relief should be granted to the Plaintiffs, including the question of whether an injunction should issue or whether the Plaintiffs should be entitled to damages and, if so, in what sum.
(vii)Further, it is not contested by the Minister and the DPCD that the documents sought to be immune from production and inspection are potentially relevant to the Plaintiffs’ damages claims (written submissions of the Minister and DPCD [26] and [27]).
(viii)The Plaintiffs’ case is that absent the contamination, which Mobil admits it has caused, the Plaintiffs had a full range of development options available to them including residential development options. Those residential options may still be available if the Minister rezones the Plaintiffs’ land. In the assessment of any damages award, the discount applied by the Court to the value of the opportunity the Plaintiffs have lost as a consequence of the leak will be significantly impacted if there is a reasonably proximate prospect of the land being rezoned residential.
The Plaintiffs point out that the Minister’s decision to consider the rezoning application was, on the documents provided by the Minister, partly based on the delays in the Council making a decision in relation to rezoning. The Plaintiffs say the fact that the decision has still not been made, some two years approximately later, should be a factor in favour of disclosure because it would be unfairly prejudicial to rely on that further delay as a reason not to disclose the documents, rather than Ministerial processes being a factor in favour of non-disclosure on the public interest immunity grounds contended for by the Minister and the DPCD.
In relation to timing related issues I note that during argument the Court sought clarification how long it was likely to be before the Minister made his decision in relation to the possible rezoning of the Plaintiffs’ land. Ms Sharp, Counsel for the Minister and the DPCD sought instructions which were to the effect that the Minister’s office was unable to say how long a decision might be. This is regrettable, in relation to the current litigation, because a decision by the Minister would be likely to clarify (one way or the other) an important part of the Plaintiffs’ case in relation to a very substantial claim for damages, including against the State of Victoria. Similarly, a decision as to the rezoning of the Plaintiffs’ land is also likely to simplify the Court’s task in determining the Plaintiffs’ entitlement to damages and the hearing time required to address that issue in Court.
In relation to the evaluation of the competing arguments for and against disclosure and inspection of the subject documents I have mentioned that s 130(5) of the Evidence Act provides, insofar as appears to be relevant to the present arguments that:
130(5) Without limiting the matters that the Court may take into account for the purposes of subsection (1), it is to take into account the following matters –
(a)the importance of the information or the document in the proceeding;
(b)…
(c)the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d)the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e)…
Balancing the substantive factors
The cases recognise that other than in relation to documents sought to be excluded from inspection which are of a “class” which would ordinarily attract public interest immunity, it is appropriate for the Court to consider the contents of the documents sought to be protected from disclosure and inspection and to evaluate those documents, including as to their relevance and potential importance in the substantive proceeding, especially in relation to the Plaintiffs’ cause of action in the proceeding. I note in this regard that during argument Counsel for the Minister and the DPCD and Senior Counsel for the Plaintiffs agreed that it was appropriate and acceptable to the Plaintiffs and the objectors that I considered all the subject material.
Having read and evaluated the relevant materials referred to in each of the categories detailed in paragraphs 9, 15, 16, 17, 18 and 19 of the Monk affidavit, I consider that the documents referred to in paragraphs 9 and 16 of that affidavit (the material asserted to contain matters of State) are of at least potential importance to the Plaintiffs’ claim for damages in the substantive proceeding considering the nature of the Plaintiffs’ causes of action and the First and Second Defendants’ defences to the Plaintiffs’ causes of action, in particular the Plaintiffs’ claim, and the defences to the Plaintiffs’ claim, in the alternative for damages.
I am not persuaded by either the Monk affidavit, or the submissions made by the Minister and the DPCD, that production and inspection of those documents in this proceeding is likely to prejudice the proper functioning of the government of the State of Victoria. In particular, I am unpersuaded that if advice and recommendations made to the Minister in relation to exercising his statutory functions are disclosed to the parties in this proceeding, before the Minister’s decision is made on the matters under consideration, that there is any likely real risk that such a circumstance would interfere with the decision making processes of the Minister or expose the Minister to criticism for a decision that the Minister has yet to make and thus interfere with the Ministerial decision making process.
Having considered the Minister and the DPCD’s position and the evidence put forward in the Monk affidavit, and also the Plaintiffs’ submissions, I am of the view that the documents asserted by the Monk affidavit as dealing with matters of State, and thereby subject to public interest immunity, are both not so protected and should in any event, in the balancing of the competing interests relating to the possible protection of the proper function of the State Government and the interests of justice in those documents being accessible to the Plaintiffs, yield to the Plaintiffs’ claims and be immediately available for disclosure and inspection by the Plaintiffs and the Defendants in this proceeding.
I consider that the documents argued as immune from production on the basis of public interest immunity are all documents related to lower levels of government business and not comparable to documents in the nature of Cabinet papers or submissions to Cabinet or reflective of Cabinet deliberations.
Furthermore, taking into account that the DPCD processes have already reached the point of having prepared what appears to be a final brief to the Minister, from which it is reasonable to infer that the Department has concluded, or at least substantially concluded its internal consultative processes in relation to the task of providing recommendations and assistance to the Minister as to the relevant potential rezoning of the land under consideration in Williamstown, I consider that any concern that production might inhibit candour by the Minister’s advisors, in relation to this matter is negligible in the circumstances. Further, I am not persuaded that ordering production in this case is likely to affect the quality of advice which the Minister’s advisers may provide him with in future similar matters.
Further, I bear in mind the circumstance emphasised on a number of occasions by the Minister and the DPCD, namely that the Minister has not yet made a decision in relation to the question of the rezoning of the subject land and that the Minister may, or may not, accept the recommendations of the Department. In this regard I accept the Plaintiffs’ submission that Ministers are often the subject of a good deal of public lobbying and pressure during this type of decision making process and do not undertake their deliberations and decision making in a vacuum. On the evidence put forward in the Monk affidavit, it is not established, nor is it likely, in my view, that production and inspection of materials sought to be protected from disclosure in this matter will interfere with the decision making processes of the Minister or expose the Minister to criticism for a decision he has yet to make and thereby in that way interfere with the decision making process.
Further, I am not persuaded on the basis of the Monk affidavit, in particular paragraphs 27, 34 and 35, that the production and inspection of the documents sought to be protected by public interest immunity will, or are likely to, change the current departmental and Ministerial processes and result in the Minister no longer receiving reliable and comprehensive written advices in relation to matters of public policy and administration or similarly adversely impact on the government’s ability to obtain full and candid advice on such matters, including because there would be no confidence that the views and opinions of the DPCD would remain confidential.
In my view the more likely position, and better view, is that it is not established on the evidence, or likely or logical, that such disclosure and inspection as is sought would necessarily, or probably, change the present processes whereby the Department provides reliable and comprehensive advice to the Minister on matters of the type being addressed in the documents in contention. In this regard, I do not accept the assertions in paragraphs 27, 34 and 35 of the Monk affidavit. It is not evident that such disclosure would affect the capacity and willingness of professional, competent and disciplined public servants to produce reliable and comprehensive advice on such matters of administration, and in applicable cases, public policy. Nor is it likely that disclosure and inspection, as sought, would cause professional, competent and disciplined public servants to change the way they presently assist and advise their Minister.
It is has not been established, nor is it logically convincing, that the disclosure and inspection of the Briefing Note and Recommendations Documents, or other documents said to be containing matters of State, would cause the Minister’s advisors to withhold full and candid advice on similar matters.
Further, I accept the Plaintiffs’ submissions that the Monk affidavit does not establish, in these respects, a nexus between disclosure and any reason why the disclosure objected to would cause public servants, with a duty to advise their Ministers full and candidly to the best of their ability, not to do so. Further, it seems unconvincing, and is unacceptable in this instance at least, that a Minister would be exposed to undue criticism in relation to a matter not yet decided, given the Minister’s obligations to consider the material before him appropriately and that the processes would be understood by the Minister to be subject to review.
I am also of the view, although I do not consider it to be determinative, that the nature of the decision which may be made by the Minister in this matter is an administrative planning decision, notwithstanding the observations made on behalf of the Minister and the DPCD that the decision making process is directed to a planning scheme amendment which, in due course, would be tabled in Parliament pursuant to s 38 of the Planning and Environment Act 1987.
Non-disclosure on the basis of confidentiality is rejected
On the issue of the confidentialities asserted by the Minister and the DPCD , I accept the Plaintiffs’ submission that the documents in the nature of the opinions of Council Officers provided in the processes to the DPCD staff, even if confidentially proffered and received, in the circumstances do not attract protection from production via subpoena and do not give rise to any immunity by way of public interest immunity. The views of the Council Officers are simply opinions of persons who will be uninvolved in the Minister’s decision making process and, in any event, confidentiality alone does not provide a basis for public interest immunity (see Betfair [43]).
I refer again to s 130(5)(d) of the Evidence Act which requires the Court to take into account the likely effect of adducing evidence of the information or documents the subject of the current applications which I have done above by reference to the Minister and the DPCD’s arguments and the Plaintiffs’ responses.
Non-disclosure on the basis of public interest immunity is rejected
For the above reasons I reject the Minister and the DPCD’s objections to the production and inspection by the Plaintiffs and the Defendants of the documents sought to be immune from inspection by reason of public interest immunity. I note however, that, as specified below, I uphold objections to the inspection of the documents the Minister and the DPCD have argued are subject to client legal privilege, which ruling impinges, as specified below, on part of the materials over which public interest immunity was also asserted.
Section 130(5)(d) of the Evidence Act also requires the Court to take into account any means available to limit the publication of the subject information or documents. I have considered what might be done to meet the concerns of the Minister and the DPCD and to that end sought the views of the legal representatives of the Minister and the DPCD and the Plaintiffs who have helpfully suggested a form of order. I have included some of the terms suggested by the Plaintiffs and the Minister and the DPCD, as appropriate in the attached Orders.
Non-disclosure on the basis of irrelevance is largely rejected
I have considered all the documents the subject of objection to production and inspection on the grounds that they are irrelevant, many of which were argued to be so because they were draft materials produced by the DPCD and not ultimately provided to the Minister for his consideration.
On this aspect I note that the Minister and the DPCD conceded by their Counsel during argument that if the claims for non-disclosure of the Briefing note and the Recommendations was not upheld by the Court, then the claims for non-production in relation to the “draft documents” would fall away.
Further, in my view, save for Documents 61 and 106 in Annexure A of the Monk affidavit which I consider are irrelevant, the materials objected to by the Minister and the DPCD as irrelevant are potentially relevant to the issues in the substantive proceedings and are also potentially material notwithstanding that I have assumed, given the objector’s arguments, such documents were not ultimately provided to the Minister. These documents are also potentially reflective of the evolution of the Department’s views and arguments in relation to rezoning and related matters and have the potential to serve a forensic purpose, including to assist the Plaintiffs’ case.
Accordingly, all Documents objected to on the basis of irrelevance, except Documents 61 and 106 in Annexure A, are to be produced and made available for inspection.
Non-disclosure on the basis of legal client privilege is largely upheld
I have considered all the documents over which a claim has been made by the Minister and the DPCD on the basis of legal client privilege and I uphold this claim in relation to the whole of documents in relation to which the claim is asserted, as follows : Tab A, Briefing (page 4, paragraph 5), 84 -93 (inclusive) 96-104 (inclusive). That is except Documents 94, 95 and 105 in Annexure A to the Monk affidavit, which are to be produced for inspection.
The claim for legal client privilege is made out on the Court’s review of the documents concerned, except those noted in the last preceding paragraph.
Orders
I attach Orders giving effect to the above decision.
I will hear the parties as to any other consequential orders and as to costs if necessary.
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