Doudar v Commissioner for Corrective Services NSW

The basis for any immunity 15The Plaintiff submitted that s 130 Evidence Act 1995 applied in the circumstances with the result that it must first be determined if the withheld information relates to "matters of state" and thereafter a balancing exercise is to be performed between the public interest in admitting the information into evidence and the public interest in preserving secrecy or confidentiality in relation to the information. 16The Defendant submitted that the matter had to be judged by the common law because s 130 was not enlivened in the present case. The Defendant said that it is s 131A of the Evidence Act that enlivens the operation of s 130. Section 131A provides: 131A Application of Part to preliminary proceedings of courts (1) If: (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and (b) the person objects to giving that information or providing that document, the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence. (2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following: (a) a summons or subpoena to produce documents or give evidence, (b) pre-trial discovery, (c) non-party discovery, (d) interrogatories, (e) a notice to produce, (f) a request to produce a document under Division 1 of Part 4.6. 17The Defendant submitted that nothing in the present case required the disclosure of information or a document. This was because the Notice to Produce was said to be served pursuant to UCPR 21.10. Rule 21.11 provides: (1) Unless the court orders otherwise, party B must, within a reasonable time after being served with a notice to produce: (a) produce for party A's inspection such of the documents or things referred to in the notice ( other than privileged documents ) as are in party B's possession, and ... (emphasis added) 18The Defendant submitted that the Rule carved out privileged documents (documents for which public interest immunity are claimed fall within that definition found in the Dictionary to UCPR) with the result that the Notice to Produce did not require production of the privileged documents. That meant there was no disclosure requirement within the meaning of s 131A(2) until an order was made on the Notice to Produce that the documents must be produced. 19The significance of the distinction between common law principles and s 130 concerned whether the balancing exercise required by s 130(1) is required to be undertaken if common law principles are applied. 20If there is any distinction between the common law principles and the test to be applied under s 130 it is irrelevant for the purposes of the present claim. In a case where the claim is made simply on the basis that the identity of an informer is at stake, Cain v Glass (No. 2) (1985) 3 NSWLR 230 may be thought to be authority for the balance having been struck by virtue of the claim being made on that basis. However, the open affidavit filed on behalf of the Defendant does not identify the claim as being based on the protection of the identity of an informer. It is necessary, therefore, even if the matter was to be determined on common law principles, to engage in the balancing act. 21In any event, I reject the Defendant's submission that nothing in the present case required disclosure of information or a document. It is question-begging to assert that the particular documents are carved out from production under r 21.11 because until it is determined whether or not the documents have public interest immunity, and are therefore privileged documents, they are not carved out. In the first instance they are required to be produced. Accordingly, the matter must be considered in terms of s 130 Evidence Act .

Do the documents concern "matters of state"? 22Section 130(4) sets out, in a non-limiting way, the circumstances in which information or documents may be taken to relate to matters of state. The relevant matters for the purpose of the present application are paragraphs (c), (e) and (f). 23The Plaintiff places some weight on what was said by the Victorian Court of Appeal in State of Victoria v Brazel [2008] VSCA 37 that there was no recognised category of public interest immunity defined in terms of the maintenance of security and safety within prisons (at [19]) and that it was not sufficient to assert that the proper functioning of a government agency was in the public interest because that could be said about any government department or agency (at [25]), and that there is no 'public order' category of public interest immunity defined in terms of 'endangering public peace, order and safety' (at [26]). 24However, the Court accepted that that a narrow claim of public interest immunity could properly be maintained with respect to specific prison security information which was shown to be both current and highly sensitive (at [27]). 25In Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562 Smart AJ considered that public interest immunity could apply to documents and information relied upon by the Commissioner to exclude a solicitor from visiting rights to correctional centres. 26The need to maintain effective law enforcement is a category of public interest immunity. This has been made clear in relation to the police: Young v Quin (1985) 4 FCR 483 at 495; Attorney-General for NSW v Stuart (1994) 34 NSWLR 667 at 675 and 690. It is appropriate to apply those principles, by analogy, to investigations of wrongdoing within the prison system. 27It seems to me that the open affidavit of Mr Hovey could not deal with matters concerned with the maintenance of order at correctional centres with greater specificity than it does without disclosing the documents and information over which the immunity is now claimed. I accept that that has the unfortunate effect for the Plaintiff that the Plaintiff does not know precisely the more limited basis upon which the evidence is relied to claim the immunity. However, based upon the further material in the confidential affidavit of Mr Hovey paras 8 to 13 and 16 to 18, and the confidential exhibit MH1, I am satisfied that the information and documents relate to matters of state within the meaning of one or more of those 3 paragraphs referred to. The material goes beyond the mere maintenance of order, security and safety within the prison system. I am also satisfied that the intelligence reports, although dated 2009, remain relevant at June 2010 and, indeed, up to the present time.

The balancing exercise 28It is then necessary to carry out the balancing task mandated by s 130(1) in the light of the matters listed in sub-s (5) and other matters which may be relevant. The relevant paragraphs for consideration are (a) and (c). 29Two matters seem to me to be of considerable significance in performing the balancing exercise. First, the proceedings in respect of which the information and documents are sought are proceedings for judicial review of an administrative decision. They are not proceedings where the Plaintiff is being prosecuted for a criminal offence and her defence of the prosecution is hampered by the withholding of the material. In saying that, I do not suggest that the matter of substance complained of by the Plaintiff in the proceedings is not of any significance to her and, for that matter, to her husband and to her children. I note, in that regard, the report from the Plaintiff's general practitioner about the effects of the ban on the Plaintiff. It is, however, a matter of less significance, perhaps, than the position where she might need the information to prove her innocence if she were being prosecuted for something. 30Secondly, the Plaintiff is not in the position where she does not know the basis upon which she was excluded from visiting the facilities. She was told that clearly in the letters of 11 June 2010 and 19 July 2010. Further, although only a passing reference was made to the incident in July 2009 involving the Plaintiff (in the letter of 11 June 2010), the circumstances of that incident were set out in the Statement of Reasons for Decision served in about July 2011. How the incident of July 2009 was said to be relevant to her exclusion in 2010 was also explained in those reasons. 31The Plaintiff is not, therefore, in a position where her ability to prosecute her Summons for judicial review is hampered because she does not know the basis upon which the decision was made. All that she is deprived of knowing is whatever further information is contained in the material in respect of which the public interest immunity has been claimed. Whilst the absence of that material may disadvantage the Plaintiff to some extent, the extent of the information and material made available cannot be said to provide any insuperable difficulty in her being able to answer the allegations that are affectively made in the material which has been disclosed. 32Although the withholding of the information does result in some procedural unfairness to the Plaintiff the principles justifying it are discussed by Smart AJ in Nicopoulos at [100]-[109]. When they are applied to the present case, bearing in mind the information that is available to the Plaintiff, his Honour's statement at [100] that procedural fairness had been "elided to nothing" is not an apt description of the position here. In one sense Nicopoulos was a stronger case for the Plaintiff because the solicitor's practice and livelihood was severely affected by the exclusion made by the Commissioner. That is not so in the present case where the matter affected is the continuing personal relationship between the Plaintiff and her husband and, to some extent, their children with their father. That is not to say that the personal relationship is not a matter of significance, and I have already made reference to the report of the Plaintiff's general practitioner. However, the ban in the present case is for a limited period (cf Nicopoulos ) and the Plaintiff's livelihood is not at stake. 33In my opinion, given the importance of the material and documents the subject of the claim, the 2 factors which I have mentioned lead me clearly to the view that the claim for public interest immunity must be upheld.

Conclusion 34I make the following orders: (1) Order that the Defendant is not required to produce in answer to the Notice to Produce of 25 May 2011 or otherwise: (a) intelligence report 1037.09 dated 2 July 2009; (b) intelligence report 032.RMPC dated 17 July 2009; (c) an unredacted incident report of F Cunningham, Assistant Superintendent, dated 18 July 2009; (d) unredacted file note of B Mood, Superintendent dated 20 July 2009. (2) Order that the confidential affidavit of Michael Allen John Hovey sworn 5 July 2011 and confidential exhibit MH1 are not to be made available to any person apart from the Defendant and his legal advisors without the leave of a judge of the Court. (3) Dismiss the Plaintiff's Notice of Motion filed 24 June 2011. (4) Order that the Plaintiff pay the Defendant's costs of the Notice of Motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 July 2011