Gaudioso v Roads and Maritime Services

State of NSW's evidence

1. The State of NSW read the open affidavit of Ms Kathryn Boyd affirmed 2 December 2019. Ms Boyd has been the general counsel of the Department of Premier and Cabinet (Department) since 15 April 2019. She deposed that her responsibilities include having direct knowledge and experience of Cabinet and its processes including the legal, administrative and procedural issues relating to the conduct of Cabinet meetings and handling of Cabinet records. Ms Boyd attends all Cabinet meetings and Cabinet committee meetings.
2. Ms Boyd deposed to the Cabinet process being a pattern of deliberations which is the means by which the government makes decisions on major policy issues. The term "Cabinet" refers both to Cabinet meetings where decisions are taken and recorded, and to the broader process of deliberation. Decisions of Cabinet committees have the same status as decisions of the full Cabinet. Cabinet processes constitute a forum for frank and uninhabited discussion of significant and sensitive issues of public policy and administration. Cabinet proceedings are conducted in secret with strict confidentiality procedures for handling Cabinet documents, for example photocopying of submissions is restricted. In summary, ministers must be able to have free and candid discussion on issues before Cabinet and to obtain full and frank advice from government officers and external experts. The threat of disclosure will adversely affect Cabinet proceedings and quality of advice given to Cabinet.
3. Cabinet has made and continues to make decisions relating to the WestConnex project including funding for acquisition of properties and funding of the project generally
4. Having reviewed the PII documents, Ms Boyd deposed to being satisfied they attract a claim of public interest immunity on the basis their disclosure would prejudice the proper functioning of the State Government. The documents behind Tabs 1-11 and 12-22 of "Confidential Exhibit KB-1" are draft Cabinet submissions and attachments. (I note that only documents at Tabs 2-11 are now relevant). The documents disclose the contents of Cabinet submissions. The disclosure of these draft submissions would mute and impede the advice given to Cabinet and the discussions and deliberations of Cabinet on future matters relating to the WestConnex program of works, because ministers and those preparing advice for Cabinet could no longer be confident that their confidentiality would be respected and upheld by the Court, contrary to the public interest in the proper administration of Government. It is essential that the advice given in Cabinet submissions is comprehensive and accurate. If such documents are liable to being disclosed there may be detrimental impact of the quality of advice ultimately provided to Cabinet. (As already noted at [7] above, most of these opinions relate to documents now not before the Court).

Applicants' evidence

1. The Applicants read the affidavit of Ms Kalinda Doyle affirmed 16 January 2020. The affidavit identified the correspondence between the parties' solicitors concerning negotiations over what documents are sought. No further detail of this affidavit is required for this judgment.
2. The Applicants read the affidavit of Mr Sean Aaron Gadiel solicitor sworn 21 January 2020. Mr Gadiel deposed to his former experience working as chief of staff for various ministers including attending Cabinet meetings and involvement in Cabinet processes. Mr Gadiel responded to Ms Boyd's open affidavit to the effect that a large number of documents are presented to Cabinet or Cabinet committees as "Cabinet in confidence documents" the disclosure of which would not prejudice the proper functioning of government. Documents are often identified as Cabinet in confidence to bring them within the protection of public interest immunity rather than for their contribution to decision-making. They are often politically or commercially sensitive but could be managed under the Government Information (Public Access) Act 2009 regime. Many documents annexed to Cabinet proposals are technical or background information not normally the subject of debate and are often not essential to any decision to be made by Cabinet.

State of NSW's submissions

1. As already noted at [7] above, only one broad category of documents remains in dispute and of these a very limited number of pages have been identified as relevant. The State of NSW's submissions were made on the basis of three categories. While it is difficult to refine the submissions as if focussing on only one category, the submissions and authorities need to be assessed in that light.
2. The State of NSW submitted that the PII documents relate to the planning, implementation and funding of the WestConnex and/or Parramatta Road "Urban Renewal Program". The State of NSW's immunity claim is not unique, extraordinary or unusual. Disclosure of the PII documents will be injurious to the public interest by prejudicing the proper functioning of the government of the State of NSW. The PII documents have little, if any, relevance to the issues in the proceedings.
3. When a claim for public interest immunity is made the Court must embark on a three-stage process to: 1. determine whether there is a public interest is the non-disclosure of the information; 2. determine whether there is a public interest in the disclosure of the information; and 3. balance, or weigh, the public interest in disclosure against the public interest in non-disclosure to decide whether or not the information should be admitted into evidence.
4. In respect of many kinds of documents (including Cabinet documents) the scales in the balancing task begin heavily tilted in favour of non-disclosure: Commonwealth v Northern Land Council (1993) 176 CLR 604; [1993] HCA 24 (NLC) at 618. The balancing exercise can only be taken when both aspects of public interest require consideration, as the court can then consider the nature of the injury likely to be suffered by disclosure and the evidentiary value and importance of the documents.
5. The Court should attach proper weight to the views of a senior government officer who adduces evidence in support of a public interest immunity claim, being "full weight" and "proper respect": Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43 at 43-44, in which the relevant deponent was a departmental head. Ms Boyd General Counsel of the Department with various duties and responsibilities including attending Cabinet meetings (see Boyd open affidavit pars 1-3, summarised above at [13]). The Court should afford considerable weight to views expressed by Ms Boyd in her affidavits. Ms Boyd's evidence should be preferred to Mr Gadiel's due to her current position and experience and that she has herself reviewed the PII documents.
6. Public interest immunity attaches to Cabinet documents and the public interest in preserving secrecy of such documents will ordinarily be given considerable weight in the balancing process: Sankey v Whitlam at 39; Conway v Rimmer [1968] AC 910 at 952. Documents relating to current or controversial subject matter will attract a high level of confidentiality: NLC at 617-618. The harm that would flow from disclosure of Cabinet documents is well established: State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 (PTTC) at [45] referring to principles emerging from NLC at 614-619.

Public interest in non-disclosure of documents

1. Turning to the application of the principles, as Cabinet documents, each document falls within the class of documents considered to be immune from production regardless of contents: Sankey v Whitlam at 39. The PII documents concern the formation of policy as considered by Allsop P in PTTC at [53]. Construction of the WestConnex program is ongoing. Cabinet continues to make numerous decisions relating to the project (Boyd open affidavit par 41, summarised above at [15]). Ms Boyd gives evidence of the harm to the public interest that will be occasioned by disclosure of the PII documents, see Boyd open affidavit pars 25-41 (summarised above at [14]).
2. The harm that would be occasioned by disclosure of the various categories of PII documents (now only one category) is identified in the Boyd open affidavit pars 42-55 (summarised above at [16]).
3. The PII documents have a government dimension and an economic dimension. This triggers a rational concern that it may be prejudicial to the State of NSW and the public if some information, that is not obviously sensitive to a judge who does not have the expertise or understanding, is disclosed because sophisticated potential investors may be able to learn more of the State of NSW's secrets than may be apparent on the face of the documents: Desane Properties Pty Limited v State of New South Wales [2018] NSWSC 173 (Desane) at [51].

Public interest in disclosure of documents

1. To overcome a claim of public interest immunity there must be a demonstrated legitimate forensic purpose for seeking the documents: Attorney-General for New South Wales v Stuart at 676. If there is no legitimate forensic purpose, the balance will inevitably be struck in favour of non-disclosure. It must be demonstrated that the documents are important to the proceedings: PTTC at [52]. Mere relevance is not sufficient.
2. The Applicants' case appears to be that there is a causal link between the Council's shift in position and its consideration of the memorandum of understanding with the NSW Government regarding the WestConnex-driven Parramatta Road Urban Renewal Program. They seek any documents relating to the memorandum of understanding and why it was deferred by the Council. The PII documents do not address this issue. The public interest in disclosure is low.
3. The State of NSW submits the result of the balancing process is that public interest in not disclosing the PII documents outweighs public interest in disclosure.

Applicants' submissions

1. The Applicants do not disagree with the general principles that the Court is required to apply as set out in the State of NSW's submissions and summarised above at [21]-[24]. They also submit that there is no absolute immunity from production and inspection of Cabinet documents. The immunity must be weighed against the public interest in the administration of justice: NLC at 616.
2. There is an important distinction between documents submitted to Cabinet and documents which record or reveal the content of Cabinet deliberations: Ku-ring-gai Council v Garry West as delegate of the Acting Director-General, Office of Local Government (2017) 95 NSWLR 1; [2017] NSWCA 54 (Ku-ring-gai v Garry West) at [80]. A document that discloses a decision made by Cabinet is not entitled to the same protection as a document that discloses the deliberations of Cabinet: Desane at [85]. The State of NSW's submissions do not explain how the PII documents would disclose the deliberations of Cabinet.

Subject matter

1. Documents relating to subject matter that has passed into history attract a lesser level of confidentiality: Murrumbidgee Ground-Water Preservation Association v Minister for Natural Resources [2003] NSWLEC 322 (Murrumbidgee) at [19]. The documents captured by the notice to produce fit into the initial stages of the implementation of a project which has already been rolled out. The documents would not prejudice the functioning of government because (a) the decision to acquire the area of land known as the "Pyrmont Bridge Tunnel Site" which includes the subject land has been made; (b) the land so identified has been acquired by the RMS, the buildings demolished and the drop down site constructed; and (c) the Parramatta Road Urban Revitalisation Project and the Parramatta Road Urban Transformation Strategy has been implemented. The notice to produce seeks documents up to May 2016. It is reasonable to assume the contents of the documents over which immunity is claimed have been superseded by later developments.

Public interest in disclosure of documents

1. The State of NSW's evidence has not permitted the Applicants to understand how the public interest immunity claim is made in respect of each document, however the documents captured under the notice to produce have been deemed relevant by the Court: Gaudioso No 1 at [54]. The documents deal with subject matter currently the subject of the dispute between the Applicants and RMS, and can be seen to be of substantial significance to the resolution of that dispute. The documents sought are submissions for the assistance of Cabinet and reports, which are less likely to attract immunity than documents recording actual deliberations of Cabinet: NLC at [54]. The Court should closely scrutinise the asserted public interest immunity claim where the documents do not reveal Cabinet deliberations or decisions of ministers.
2. In the opinion of Mr Gadiel, the detail, technical or background information is often not an essential element of any decisions that Cabinet may reach. The mere fact that Cabinet may have deliberated on the subject matter contained in the submissions does not mean that the deliberations or decisions are contained in those documents.
3. The State of NSW submits that disclosure might prejudice the ability of ministers to obtain full and frank advice and that production of the PII documents would inhibit Cabinet's ability to make decisions. In Desane, Robb J was not willing to accept that the risk that occasionally a Cabinet decision will be required to be disclosed to a party in litigation would lead to a collapse in the level of accuracy with which Cabinet decisions are recorded (at [89]). In Ku-ring-gai v Garry West, Basten JA said that a claim that candour and frankness might be compromised by disclosure "borders on the fanciful" (at [91]). The disclosure of the documents will not prejudice the ability of the State of NSW to fulfil its functions.
4. Regarding the relevance of the PII documents to the proceedings, the State of NSW is not a party to the proceedings and does not have the same level of familiarity as the Applicants. The Court should give no weight to the submissions that the documents do not serve any legitimate forensic purpose in the proceedings. The Court has already determined the legitimate forensic purpose of all of the documents caught by the notice to produce: Gaudioso No 1 at [54].

Balancing competing public interests

1. The State of NSW does not explain the circumstances in which the individual documents will prejudice the function of the State of NSW. Release of documents in the public interest is justified and has been shown to have an impact on the functioning of the State of NSW.

Consideration

1. The Applicants are seeking compensation for the compulsory acquisition of their land by the RMS (now Transport for NSW), an agency of the State of NSW. The underlying zoning of the land by Leichardt Council is an issue in the proceedings: Gaudioso No 1 at [19]. They allege that but for the WestConnex project, which has changed planning for Parramatta Road, their property would have been differently and more valuably zoned by the Council. They want compensation to be calculated on the basis that the more valuable zoning would have applied to their property at the date of acquisition. The documents they seek are held by the State of NSW, an agency of which has compulsorily acquired their property. The very limited pages in Tabs 4 and 10 which I have found are relevant have a legitimate forensic purpose.
2. The parties agree as to the principles which apply to the determination of the public interest claim for immunity from disclosure, albeit with different emphases reflecting their respective concerns. Both identify the duty of the Court to balance the competing public interests in favour of non-disclosure with that of disclosure of documents. The relevant cases are identified in the parties' submissions and I do not repeat them here. It is important to recognise that the only category of documents sought is technical reports prepared to support submissions to Cabinet about WestConnex made in the first half of 2016. No submissions disclosing advice to Cabinet or Cabinet deliberations are sought. I do not think the State of NSW's reliance on NLC is entirely apposite as that case was considering Cabinet deliberations. The conclusion that the balancing task was heavily tilted in favour of non-disclosure was made in that context. Sankey v Whitlam was considering various categories of documents over which privilege was claimed.
3. The material sought is now several years old. As the Applicants submitted the WestConnex project as it applies to their property is in the process of being implemented. That current issues with WestConnex (a very large public infrastructure project taking place over many years) may need to be brought before Cabinet does not prevent material which has no current relevance from being disclosed. As the Applicants effectively submitted, it is difficult to see how disclosure of this material can impact on the current functioning of the NSW Government. The concerns identified by the State of NSW at [27] above based on Desane at [51] do not apply here. The documents do not relate to a current controversial subject matter within the wider context of WestConnex. Murrumbidgee at [19] identifies that such documents are likely to be less confidential. NLC at 617-618 is noted but does not arise.
4. As to giving weight to Ms Boyd's opinions, much of her evidence was directed to the actual deliberations of Cabinet. No such consideration arises now. Mr Gadiel's opinion that technical material is less likely to be subject to a public interest immunity claim applies in the circumstances before me.
5. The authorities relied on by the Applicants are more apposite to the particular technical documents before me, particularly Ku-ring-gai v Garry West at [80]. I accept the Applicants' submissions supporting release of the documents given their technical nature. The balancing of the competing public interests weigh in favour of disclosure of the documents, such as they are.
6. As already identified above at [8]-[9] very little of the documents under consideration are relevant, whether due to their being dated after 1 May 2016 or their contents being irrelevant. It is appropriate, balancing the competing public interests of disclosure in court proceedings and non-disclosure of technical documents informing the Cabinet process, that the few pages I have identified be made available to the Applicants.
7. The State of NSW submitted, and I accept, that as I have determined there should be disclosure of some parts of the documents the subject of the public interest immunity claim at [10]-[11] above (Tab 4 p 3 "Executive Summary" and p 10, Tab 10 pp 1 and 3) that it should have the opportunity to consider the decision.
8. I note that an additional measure available is that any document produced can be the subject of a confidentiality agreement as between the State of NSW and the Applicants' legal representatives. That would appear to be an appropriate mechanism in the circumstances of this case.
9. I will not make a final order in this judgment to enable the State of NSW to consider its position.

Amendments 27 May 2020 - Cover page - Typographical error omission of Respondent's junior counsel's appearance 27 May 2020 - Cover page - Typographical error omission of Applicant's junior counsel appearance 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: 27 May 2020