ADELAIDE BRIGHTON CEMENT v STATE OF SA & ANOR No. SCGRG-98-211 Judgment No. S379 [1999] SASC 379

ADELAIDE BRIGHTON CEMENT v STATE OF SA & ANOR No. SCGRG-98-211 Judgment No. S379 [1999] SASC 379 - SASC 1999 case summary — Zoe

[40]

(9) It is now beyond question that the court has power to inspect the document or documents privately: Sankey v Whitlam at 46. There is, however, a question whether the court should look at the documents for assistance in the balancing exercise, that is to say, when weighing the two conflicting aspects of the public interest. In some cases, the court might be able to determine that the public interest requires that the documents be withheld from production without inspection of the documents: see Commonwealth v Northern Land Council where it was held that documents recording the deliberations of Cabinet on topics which were current and controversial would not be disclosed except in quite exceptional circumstances. It was unnecessary in that case to inspect the documents to determine the claim for privilege. Only in cases where the ministerial affidavit demonstrates with sufficient particularity the nature and the significance of the documents both in terms of any need to preserve their confidentiality on the one hand and for the actual litigation on the other is it likely that it will be possible to reach such a conclusion: c.f. Woodhouse P in Fletcher Timber Ltd v Attorney-General at 295. In almost all other cases, an inspection will be necessary. There is a question whether the applicant for production of the document must satisfy some threshold test before the court inspects the documents. Plainly, the documents must be relevant. The question is whether any further or more stringent test is necessary. That question was examined by Gibbs CJ in Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, by Cox J in Legal Services Commission v Trotter at 84 - 85, and by Toohey J in the dissenting judgment in Commonwealth v Northern Land Council at 632-636. Reference should also be made to Conway v Rimmer, Burmah Oil Co Ltd v Bank of England; Air Canada v Secretary of State for Trade; Fletcher Timber Ltd v Attorney-General; and Middleton v State of Western Australia. As Toohey J pointed out in Commonwealth v Northern Land Council at 634 - 635, the process of discovery (in this court, the list of documents) demonstrates the existence and relevance of the documents to the issues in the action. The application for production for inspection is a usual concomitant of the process of discovery. It would seem, therefore, that where there is a claim for privilege on the ground of public interest immunity, the court should without more inspect the documents for the purpose of weighing the competing public interests.

[41]

The decisions in Burmah Oil and Air Canada suggest that there may be a further test. They suggest that in England a judge should not look at the documents unless he is persuaded that an inspection would be likely to satisfy him that he should order production, that the judge should have some concrete ground for belief of that fact which takes the case beyond a mere fishing expedition, to use the words of Lord Wilberforce in Air Canada at 439. Burmah Oil and Air Canada were cases in which the documents were sought in civil proceedings. There was a division of opinion in the House of Lords whether, before inspection is ordered, the document should appear likely to support the case of the parties seeking discovery, or whether it is enough that they should appear likely to assist any of the parties to the proceedings. In Air Canada the majority favoured the former view. The High Court has not had occasion to consider the question in civil proceedings. Only Toohey J had to consider the issue in Commonwealth v Northern Land Council as the question did not fall for examination on the approach taken by the majority. It must be remembered that the rules in England as to discovery are not as liberal as those in this State and in other jurisdictions. Order 24 r 8 of the Rules of Court in England requires discovery only if disclosure is necessary "for disposing fairly of the cause or matter or for savings costs". Rule 58.01 of the Rules of this Court requires documents to be discovered if they are documents "relating to any matter in question in the action". For these reasons, the two English decisions may be distinguished. The procedure of issuing subpoenas of documents for production may lead to concerns as to fishing and Alister v The Queen was such a case. Where the parties have exchanged lists of documents concerns as to fishing will arise only if a party seeks documents which have not been discovered. That is not the position in this application. Concerns as to fishing and the principles to be applied when a party subpoenas documents may, therefore, be put to one side.

[76]

After deciding that there appeared to be no sufficient ground to require these documents to be withheld from production, I inspected each of the documents. That inspection has confirmed that there is no reason why any of these documents should not be disclosed. In the main, the Cabinet submissions fall into two broad categories. The first are recommendations for increases in charges for the use of harbour facilities, recommendations which have already been implemented in all cases more than 13 years ago. Those charges have been varied from time to time, usually in each year. They are now of historic interest only. All of the documents which are attachments to Cabinet submissions are attached to submissions concerning increases in charges. The attachments are all tables comparing proposed charges for use of harbour facilities in South Australia with like charges in other States. All of these charges have been published by regulation or other statutory instrument made a good number of years ago and have been overtaken by later increases in charges. There is no basis for withholding production of the attachments. The second group of Cabinet submissions concerns recommendations for expenditure to improve harbour and marine facilities. The most recent is dated 2 April 1990 and recommends deepening and improvements of the Port River in stages over seven years. The project was approved. It concerns a matter of housekeeping by what was then the Harbors Board. Other documents in that group have been in existence for 13 or more years. They also concern what might fairly be described as routine matters of improvement to harbour and marine facilities. There is nothing of sensitivity for the public interest of this State in any of the documents. Disclosure will not in any respect affect any current activity of the Government. At least four of these documents relate directly to harbour facilities used by the plaintiff. All of the documents are clearly relevant to the issues in this action. The Cabinet submissions which do not directly deal with recommendations for increases in charges deal with costs incurred by the Harbors Board in the provision of harbour facilities and are therefore relevant to the issue whether the charges are a fee for service.

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Judgment (83 paragraphs)

ADELAIDE BRIGHTON CEMENT v STATE OF SA & ANOR No. SCGRG-98-211 Judgment No. S379 [1999] SASC 379 (6 September 1999)

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Legislation Cited (2)

Cases Cited (15)