Deputy Commissioner of Taxation v Law Institute of Victoria Ltd [2010] VSCA 73

Deputy Commissioner of Taxation v Law Institute of Victoria Ltd [2010] VSCA 73 - VSCA 2010 case summary — Zoe

[27]

There may be circumstances when it would nonetheless be proper for disclosure to the Commissioner of documents created by or for the LIV in the exercise of its statutory duty and function. However, I do not consider this to be one such case. The reports themselves are all based upon other material. The conclusions drawn by the auditors are conclusions and opinions by the auditors for the LIV's statutory task and do not establish anything independently of the source documents beyond opinions or conclusions wholly drawn for the LIV's statutory function. These documents contain no more information than the Commissioner could create himself by undertaking the task of having someone analyse source documents. The Commissioner has not sought to rely upon any material in support of disclosure of these documents beyond a power to require the documents, the existence of an audit and the possibility that these documents might be of assistance. He has not sought to assist the Court by indicating (either in an open affidavit or by some confidential affidavit or exhibit) what source information is currently available to the Commissioner, what steps have been taken by the Commissioner to obtain the source information, or whether the need to secure the conclusions drawn from these documents are more likely to assist the Commissioner than for the Commissioner to draw his own conclusions and himself undertake the work which the LIV's auditors have done. In short, no material has been put before me on behalf of the Commissioner beyond an assertion of power, the existence of an audit, and the possibility that disclosure of the documents might be of assistance, from which I should conclude that the balance of competing interests favours disclosure of these documents to the Commissioner. In my opinion the balance I must strike in this case favours the preservation of them from disclosure. To disclose these documents, in the absence of anything tipping the balance in favour of the Commissioner, adversely interferes and affects the public policy evident in the acquisition of the documents by the LIV with an obligation to keep them confidentially.

[36]

Axiomatically, the decision on any PII claim depends upon the circumstances in which the claim is made. Everything turns on the character of the particular information in issue and the nature of the particular litigation (or administrative investigation) in which the occasion for disclosure of the information arises. Before embarking on the balancing exercise, the court must assess the strength of the arguments for non-disclosure and disclosure respectively. The court must scrutinise carefully what is said to be the potential damage to the public interest if the information is disclosed and, equally, what is said to be the significance of the information in the litigation.

Gibbs CJ elucidated the process in Alister v R,[12] as follows:

'[T]he court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - ie, when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation.'[13]

As to the damage which may result from disclosure, it is necessary to consider whether the content of the document is 'current and controversial'.[14] Obviously, if the information is out-of-date, the risk of injury to the public interest is likely to be much reduced, if not non-existent. The need for secrecy may be short-lived or long-lasting. Everything depends on the subject-matter and content of the information in question.[15]

[44]

The full fabric of the disciplinary procedures and powers of the Association and the Society were laid before me. It is sufficient, however, if I observe that in each case the complaint was dealt with by the professional body in the exercise of its general disciplinary functions.

The threshold question is whether it is open to the Bar Association and the Law Society to take objection to the production of the relevant documents on the grounds of public immunity.

It is now well-established that the categories of public interest are not closed and must alter from time to time, whether by restriction or extension, as social conditions and social legislation develop: D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171 at 230 per Lord Hailsham.

The problem should be approached with caution, but at the same time a willingness to extend established principles by analogy and legitimate extrapolation. Flexibility is required: Aboriginal Sacred Sites Protection Authority v Maurice (1986) 65 ALR 247 at 251 per Bowen CJ.

The maintenance of a body of competent barristers and solicitors

compliant with high ethical standards of conduct is fundamental to the proper administration of justice; the proper administration of justice itself being fundamental to the maintenance of our democratic system of government. There is thus a public interest in the Association and the Law Society continuing to exercise an efficient disciplinary role over their members.

I have no hesitation in holding in the light of the principles enunciated in various cases since McGuiness v Attorney-General (Victoria) [1940] HCA 6; (1940) 63 CLR 73, that public interest immunity attaches to confidential material obtained by the Bar Association and the Law Society pursuant to the exercise by them of their disciplinary functions and that they are accordingly entitled to object to the production of such material.

The question then is whether they are entitled to have their objections upheld. The resolution of this question involves what is referred to as the 'balancing exercise'. It involves having the detriment to the public interest involved in disclosure weighed in the balance against the detriment to the public interest in non-disclosure. (His Honour went on to refer to the statement by Gibbs CJ in Alister v The Queen.)[22]

[47]

The substantive argument advanced on behalf of the institute in this regard was that there is a real risk that if material gathered by the institute in the course of its inquiry into Skinner's affairs and its audit of his trust account is disclosed, it will inhibit the institute's conduct of inquiries hereafter in that persons (including accountants and inspectors) who might otherwise be prepared to give information to the institute in confidence will no longer do so for fear that their identity will be disclosed. Expressed another way, it is said that the public interest immunity which protects the identity of informants in public prosecutions should be extended to protect from disclosure information given to the institute relating to the affairs of solicitors. Whilst we agree that there is much force in the proposition that as a general rule the names of informants who have given information to the institute in confidence should not be disclosed, we consider there is no warrant for the much wider proposition that information provided by such informants should not be disclosed during the course of litigation in respect of which it is of relevance, let alone documentation bearing upon the very issues the court will be required to determine in that litigation. It is to be remembered that disclosure pursuant to the process of discovery is not disclosure to the world at large, because the party obtaining information through discovery is not able to make use of the information and documents thus acquired otherwise than for the purposes of the litigation: see Home Office v Hannan [1983] 1 AC 280. There is no evidence to suggest that any informant in the present case gave information to the institute on any undertaking or understanding that his or her name would not be revealed.

In our opinion, the only document which poses any problem in the present case is the computer print-out of complaints against [the solicitor]. There is no suggestion that any of the remaining categories of documents contain the names of informants. The computer print-out may well contain such information ...

[51]

The present is a case where the claim to public interest immunity, or

privilege, was taken as a class, and was unsupported by any affidavit or any evidence to the effect that any person supplied information on an undertaking or promise of confidentiality, or otherwise detailing the public interest considerations. That it was dealt with as a 'class claim' rather than as a 'contents claim', that is, one to withhold particular documents, raises no difficulty. ...

It was also a claim made without the support of any affidavit. Again that is not unusual, nor is it a circumstance disentitling the claimant to an immunity from production ..., although it is usually more satisfactory for the Court to have an evidentiary basis upon which it might consider the claim.

It is clear from the authorities previously cited that claims to public interest immunity are not to be narrowly confined to departments or organs of central government. In appropriate cases, I am of the view that the Bar Council is entitled to make such a claim. However, where it does take that course, then it requires the balancing exercise referred to in the authorities and in the passage I have quoted from Alister v The Queen, to be undertaken. That involves weighing the detriment to the public interest involved in disclosure, against the detriment to the public interest in non- disclosure. ...

In the weighing exercise, I am satisfied that there is a substantial public interest in the Bar Council receiving complaints about misconduct of barristers, in being able to speak freely with such complainants, in being able to fully investigate those complaints and in appropriate cases being able to gather additional evidence. This is part and parcel of a public interest that it effectively carry out the statutory functions assigned to it, and that the legislation as a whole be implemented. The public interest is obvious and hardly needs stating. The public are to be protected from barristers who are guilty of professional misconduct, or unsatisfactory professional conduct, and are entitled to have effective orders made not only for the disciplining of those barristers who offend, but to have their losses made good. These are the ends the Act serves, and it provides an effective means for discipline and compensation.

On the other side, there is the public interest in the eliciting of truth in a disciplinary proceeding, and in making all relevant material available to both parties. An interference with a practitioner's right to practice is important, and disciplinary proceedings against a barrister are akin to criminal proceedings, particularly in that the orders which may be made include a fine, and/or reprimand, quite apart from orders for cancellation or suspension of the right to practice and for remedying loss.[33]

[59]

The classification of claims for public interest immunity in relation to documents into 'class' claims and 'contents' claims has been described as 'rough but accepted'. It serves to differentiate those documents the disclosure of which would be injurious to the public interest, whatever the contents, from those documents which ought not to be disclosed because of the particular contents. Both upon principle and authority, it is hardly contestable that documents recording the deliberations of Cabinet fall within a class of documents in respect of which there are strong considerations of public policy militating against disclosure regardless of their contents. But, whatever the position may have been in the past, the immunity from disclosure of documents falling within such a class is not absolute. The claim of public interest immunity must nonetheless be weighed against the competing public interest of the proper administration of justice, which may be impaired by the denial to a court of access to relevant and otherwise admissible evidence. As Gibbs ACJ said in Sankey v Whitlam:

'I consider that although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure for ever. The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection -- the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned. If a strong case has been made out for the production of the documents, and the court concludes that their disclosure would not really be detrimental to the public interest, an order for production will be made.'

In the last sentence in the passage which we have just quoted, Gibbs ACJ was referring no doubt to the outcome of a balancing process in a case where the detriment to the public interest involved in disclosure was outweighed by the public interest in the advancement of justice. In a case where a document fell into a class of document the disclosure of which would be injurious to the public interest regardless of the contents, a court could conclude that 'disclosure would not really be detrimental to the public interest' only in circumstances where there was a competing public interest, such as the public interest in the advancement of justice, which outweighed the public interest in the preservation of confidentiality. To inspect the contents of documents as a matter of course would be to disregard the basis of the immunity for a document falling within the class described. The apparent dilemma is, we think, to be resolved by recognizing that the classification of claims for immunity into 'class' claims and 'contents' claims is indeed often rough and imprecise. In many so-called 'class' cases a court may find it necessary to consider a document, inspecting it if necessary, in order to determine whether it does in truth fall into a class which attracts immunity. The contents of the document may have a bearing on that question as may the topic with which it deals, particularly if it is no longer current or controversial.[40]

[62]

Objection may be taken to the production of documents because it would be against the public interest to disclose their contents or because it belongs to a class of documents which in the public interest ought not to be produced. There are documents which belong to a class which ought not to be disclosed irrespective of the contents of the particular documents because the law acknowledges that in the public interest such a class of documents should be immune from disclosure. The class includes Cabinet minutes and minutes of discussions between heads of government departments, papers brought into existence for the purpose of preparing submissions to Cabinet, and certain other documents which relate to the framing of government policy at a high level: ... The extent to which this doctrine would protect from disclosure documents concerned with policy making by junior officials of government or correspondence with outside bodies is a matter on which there is divergence of judicial opinion. Although there are classes of documents which are entitled to protection from disclosure irrespective of their contents 'no documents, however exalted their status, are completely immune from production': ... Such documents may be withheld from production only when this is necessary in the public interest: ... Although objection may in some cases be taken to production of documents because they belong to a class of documents which in the public interest ought not to be produced and although the class is not closed, it must only be in rare cases of documents at high levels of government involving matters of national importance that the class doctrine can apply. Documents within the possession of the ASC (an investigative and law enforcement agency) of a confidential nature, which record information received by it concerning possible offences or irregularities and recording the possible course of investigations or information with respect to evidence concerning proceedings to which the ASC is a party, plainly may fall within the scope of public interest immunity; but as at present advised I cannot conceive of a case where they would fall within the class doctrine and thus be immune from disclosure irrespective of the contents of any particular document.[44]

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