[1993] HCA 24
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
[1981] HCA 26
HT v the Queen (2019) 269 CLR 403
[2019] HCA 40
Ku-ring-gai Council v West (2017) 95 NSWLR 1
[1978] HCA 43
Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1
Source
Original judgment source is linked above.
Catchwords
[1993] HCA 24
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297[1981] HCA 26
HT v the Queen (2019) 269 CLR 403[2019] HCA 40
Ku-ring-gai Council v West (2017) 95 NSWLR 1[1978] HCA 43
Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1
Judgment (26 paragraphs)
[1]
The Applicant relies on Further Amended Points of Claim (FAPOC) dated 18 June 2024 which include pars 18A and 35A. The substance of the Applicant's case informs the balancing of matters the Court needs to undertake in determining the PII claim.
The FAPOC provide relevantly as follows:
[2]
18A Compensation is payable to the Applicant under s. 70 of the Just Terms Act for the financial costs incurred or damage suffered as a direct consequence of the Acquisition, which includes those costs incurred and that damage suffered by the Applicant arising from:
[3]
(a) the taking of the interest in the Land by the Respondent;
(b) the exclusive possession of the Land by the Respondent;
(c) the proposal to acquire the Land, including any precedent steps taken by the Respondent between 16 March 2017, being the date the preferred route for the WHT was publicly announced, and the Acquisition Date; and
(d) any decisions taken by the Respondent in relation to the proposal to carry out the public purpose on the Land between 16 March 2017 until 26 May 2022;
[4]
(i) the Applicant was unable to progress the development given the uncertainty as to whether it would be able to complete the development of the Land if it commenced it because of the pending the Acquisition; and
(ii) the Respondent had exclusive possession of the Land;
[5]
(f) the costs associated with the fire on the Land on 7 May 2022 (see [27]-[29D] below).
...
[6]
35A Compensation is payable to the Applicant under s. 70 of the Just Terms Act for the financial costs incurred or damage suffered as a direct consequence of the Rescission, which includes those costs incurred and that damage suffered by the Applicant arising from:
[7]
(a) the revesting of the acquired interest in the Land by the Respondent;
(b) the proposal to rescind the Acquisition, including any precedent steps taken by the Respondent between at least 26 May 2022 and 29 July 2022, being the date of the Rescission;
(c) any decisions taken by the Respondent in relation to the proposal to carry out the public purpose on the Land between at least 26 May 2022 and 29 July 2022, being the date of the Rescission;
[8]
(i) the Respondent had exclusive possession of the Land;
(j) the Applicant modified the consent granted to the DA to respond to changed market conditions that existed following the Rescission;
(ii) the Applicant redeployed resources following the Rescission to undertake development of the Land.
[9]
Referring to the documents identified in the schedule to the amended notice of motion in relation to category 3, one very large document the Project Definition and Delivery Report (PDDR) prepared for the Western Harbour Tunnel Beaches Link (WHTBL) with various attachments in both final and draft form are identified as relevant to category 3 and are identified as Cabinet in confidence in full (documents 2-34).
Partial claims over internal departmental weekly briefing reports (documents 35-40) and a briefing to the Secretary (document 41) are also made.
[10]
Three documents (1, 42, 43 in the schedule to the amended notice of motion) are identified by the Respondent in relation to category 6. The whole of Rozelle Interchange Contractor: Contractor Change Notice - Evaluation Report (Contractor Change Notice) (document 1) and parts of an Outcomes Report and Approval History (documents 42, 43) are the subject of the PII claim.
The Respondent read three affidavits of Ms Drover Deputy Secretary of Transport for NSW. Two non-confidential affidavits described Cabinet processes and the preparation of the documents in the schedule the subject of the PII claim. A third confidential affidavit was also read by me alone. It can be accepted that documents over which PII is claimed for category 3 for the whole of documents 2-34 were provided to Cabinet, are drafts of the final document that went to Cabinet or were an attachment to Cabinet submissions. Some of the documents in categories 3 and 6 that have been redacted to preserve claims of PII are demonstrated to reveal the contents of Cabinet decisions or the proposed or actual content of a Cabinet submission.
The Respondent argued that the PII claim should be upheld because all the documents are Cabinet documents or refer to Cabinet documents, were prepared on a confidential basis by the Respondent or third parties for Cabinet processes, and disclosure may have a detrimental impact on future commercial transactions in which the state may want to engage. Consistent with the observations of Allsop P (Hodgson JA and Sackville AJA agreeing) in New South Wales v Public Transport Ticketing Corporation[2011] NSWCA 60 (PTTC) at [50], a decision by a government to enter into a commercial transaction is a matter of policy which PII ordinarily protects. Exceptional circumstances would be required before these documents are disclosed. The documents are not crucial to the proper determination of the Applicant's claim, do not advance the argument that financial costs and damages were actually incurred or suffered as a direct consequence of the compulsory acquisition and rescission, and a narrow construction of s 70 should be adopted.
The Applicant emphasised the balancing exercise that must be undertaken by the Court in weighing up the need for the documents to assist the Applicant's case with the PII considerations of the Respondent. That the documents are Cabinet documents alone is not decisive, PTTC at [45], Ku-ring-gai Council v West(2017) 95 NSWLR 1; [2017] NSWCA 54 at [89] (Basten JA).
[11]
Any person may raise a PII claim, as provided by s 130(2) of the Evidence Act. The Respondent relies on s 130(4)(f), that disclosure of the documents the subject of the PII claim will prejudice the proper functioning of the NSW government and can be taken to be information or a document relating to matters of state, to argue that the PII claim ought to be upheld. Subsection (5) sets out matters non-exhaustively that a court must consider in undertaking the necessary balancing exercise identified in s 130(1). Subparagraphs of subs (5) relevant to civil proceedings being (a), (c), (d), (e) are extracted above in [4]. Subparagraph (e) was not raised in argument. Subsection (5) states expressly that it does not limit the matters that a court may take into account.
The parties generally agreed on the applicable principles when undertaking the necessary balancing process as articulated in Sankey v Whitlam(1978) 142 CLR 1; [1978] HCA 43 at 39 (Gibbs ACJ), Commonwealth v Northern Land Council(1993) 176 CLR 604; [1993] HCA 24 (NLC) at 618, and PTTC at [50] albeit with different emphases.
The discussion in PTTC referring to NLC at [45]‑[48] in relation to the balancing process that must be undertaken is particularly helpful as follows (emphasis in original):
[12]
[45] A number of propositions can be taken from their Honours' reasons to guide consideration of this issue. It is in the public interest that deliberations of Cabinet, including the decisions made by Cabinet, should remain confidential in support of the collective responsibility of Cabinet government: NLC at 615. It is the position of the body as responsible for the creation of state policy at the highest level that engenders the need for protection: NLC at 615. Thus, an important consideration is the protection of deliberations leading to the formulation of state policy, though this proposition should not be taken as meaning that only formulation of policy is to be protected. The threat of disclosure may impede or mute free and vigorous exchange in Cabinet: NLC at 615. Decision-making and policy development by Cabinet is to be uninhibited: NLC at 616. The division of claims into "class" and "contents" claims is rough, but acceptable, to differentiate types of documents the disclosure of which would injure the public interest, irrespective of contents, and those which ought not to be disclosed because of their contents: NLC at 616. Documents revealing Cabinet deliberations and decisions fall within the former class. But their immunity is not absolute: NLC at 616. The immunity must be weighed against the public interest in the administration of justice: NLC at 616.
[46] The nature of this weighing or balancing process is what lies at the heart of any contested application such as this. The majority in NLC at 616-617 approved a passage from the judgment of Gibbs ACJ in Sankey v Whitlam[1978] HCA 43; 142 CLR 1 at 43 which is worthy of repetition here:
[13]
"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."
[14]
[47] The majority in NLC at 617 elaborated upon the last sentence in this passage from Gibbs ACJ's reasons in Sankey v Whitlam saying:
[15]
"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."
[16]
[48] Their Honours then went on to say at 617 that the currency or controversiality of the subject matter is relevant to the balancing process. The character of the subject matter is, implicitly, also important. Their Honours had already spoken of policy and its formulation through the deliberations of Cabinet. Their Honours then emphasised that immunity of documents of Cabinet deliberations and Cabinet documents (ordinarily attracted irrespective of contents) is not absolute: NLC at 617-618. A court will initially lean against disclosure: NLC at 618. Whether circumstances are sufficient to displace the immunity depends in part on the nature of the class. As to this the majority said at 618:
[17]
"In the case of documents recording the actual deliberations of Cabinet, only considerations which are indeed exceptional would be sufficient to overcome the public interest in their immunity from disclosure, they being documents with a pre-eminent claim to confidentiality. The process of determining whether an order for disclosure of documents in that class should be made remains one of weighing the public interest in the maintenance of confidentiality against the public interest in the due administration of justice, but the degree of protection against disclosure which is called for by the nature of that class will dictate the paramountcy of the claim for immunity in all but quite exceptional situations.
Indeed, for our part we doubt whether the disclosure of the records of Cabinet deliberations upon matters which remain current or controversial would ever be warranted in civil proceedings. The public interest in avoiding serious damage to the proper working of government at the highest level must prevail over the interests of a litigant seeking to vindicate private rights. In criminal proceedings the position may be different."
...
[18]
The Respondent submitted that the Court is required to undertake a three-stage process, firstly to ascertain whether a legitimate forensic purpose exists, see Attorney-General (NSW) v Stuart(1994) 34 NSWLR 667 at 681 (Hunt CJ at CL), secondly establishing the claim of PII and thirdly, the balancing exercise of weighing up these matters. The Applicant relied on PTTC at [42] to submit that essentially two stages of analysis are necessary as legitimate forensic purpose has been determined, which submission I agree with. The recent amendments as set out in the Applicant's FAPOC identify the forensic purpose of the information sought.
As I indicated during the hearing, I will not adopt for current purposes the narrow construction of s 70 of the Just Terms Act which the Respondent sought to argue, namely that acquisition for the purpose of that section should be taken to be the DOA of 1 October 2021, so that no events earlier than that date can be relevant. Further, the Respondent's submission that only material relevant to establishing the incurring of costs and damages can be relevant to a claim under s 70 is also too narrow an approach to statutory construction at this early stage of the proceeding and is an issue that requires substantive determination at the final hearing by the trial judge. I will be considering the case as articulated by the FAPOC which assumes a wider construction of s 70 and which renders events before the DOA potentially relevant as articulated in pars 18A and 35A of the FAPOC. I observe that compulsory acquisition by an acquiring authority is often a lengthy process as the Just Terms Act requires an acquiring authority to negotiate with a holder of an interest in land before proceeding to acquisition (s 10A), and the issuing of a PAN (s 12) as steps necessary to be undertaken before a formal notice of acquisition is issued under s 19.
For the purposes of this application the Applicant is relying on its case as now articulated in pars 18A particularly (c) and (d) and 35A particularly (c) and (d) of the FAPOC, extracted above in [9]. In par 18A, the financial costs incurred or damage suffered as a direct consequence of the acquisition includes those arising in subpar (c) the proposal to acquire the Land and preceding steps by the Respondent from 16 March 2017 to 1 October 2021 (DOA). Subparagraph (d) identifies any decision taken by the Respondent in relation to the Land between 16 March 2017 and 26 May 2022. The periods referred to in these paragraphs in the FAPOC include periods before the DOA of 1 October 2021.
The documents sought in categories 3 and 6 in the NTP are for periods of time which entirely or partially precede the DOA reflecting the case articulated in the FAPOC. Category 3 of the NTP seeks documents between 16 March 2017 and 8 March 2018 identifying the Balmain Leagues Club site as being affected by the WHT project. Category 6 of the NTP seeks documents between 7 October 2020 and 19 January 2022 outlining the business case for entering into a deed with a large construction company that refers to the Land, inter alia. Paragraph 35A of the FAPOC identifies the basis compensation is payable under s 70 in relation to the rescission including events between 26 May 2022 and 29 July 2022. The case articulated in par 18A of the FAPOC requires events earlier than the DOA to be investigated which underpins categories 3 and 6 in part in the NTP. The case articulated in par 35A includes a time period of up to 29 July 2022 and category 6 is also underpinned by that paragraph.
Factors which a court must consider in determining a PII claim in civil proceedings are identified in ss 130(5)(a)-(e) of the Evidence Act. The importance of the information sought (subpar (a)), and the nature of the cause of action to which the information relates (subpar (c)) must be considered. The Applicant submitted the purpose of calling for the documents was to examine the consequences the acquisition for the purpose of the WHTBL project (and its subsequent recission) had on the development timeline and the impact that the knowledge of the proposed acquisition had on the financing of the development of the Land and the development timeline. As the Applicant submitted, in seeking to make a claim under s 70 of the Just Terms Act the Respondent was the relevant decision maker in relation to the acquisition and rescission of the Applicant's interest in the Land. The Respondent has substantial control over the material which underpins the Applicant's case as currently articulated in the FAPOC. This must form part of the weighing up process concerning the public interest in disclosure as required by subs (5)(a) and (c). Based on the case articulated in the FAPOC pars 18A, 35A there is a basis to find that categories 3 and 6 seek documents potentially relevant or material to establishing the Applicant's case.
Subsection (5)(d) identifies the likely effect of adducing the evidence of the information or document and the means available to limit its publication. Dealing firstly with the likely effect of adducing the evidence, the Respondent emphasises that all of the documents concern Cabinet processes or divulge details of possible Cabinet deliberations so that disclosure will affect the proper functioning of the NSW government in that harm would be caused to the proper functioning of Cabinet applying the principle of collective Ministerial responsibility, relying on s 130(4)(f). The nature of these documents is supported by the affidavit evidence of Ms Drover dated 28 March 2024 in relation to the PDDR including its many annexures, and the Contractor Change Notice which were both attached to a Cabinet committee submission and prepared with the express purpose of informing Cabinet committee deliberations. The PDDR and appendices and Contractor Change Notice were attachments to different Cabinet submissions made to the expenditure review committee of Cabinet. Information otherwise marked in red outline in other documents being the weekly briefing reports, briefing to the Secretary, Outcomes Report and Approval History, identifies the contents of Cabinet decisions or the proposed or actual contents of a Cabinet submission.
The process of a Minister bringing forward matters to Cabinet in accordance with the NSW Cabinet Practice Manual is described by Ms Drover, with the workings of Cabinet subject to established conventions of confidentiality and collective responsibility. The role of Cabinet committees, that their deliberations and decisions have the same status as decisions of the full Cabinet, and that the same conventions and procedures apply to the conduct of Cabinet committees as apply to full Cabinet are also identified. According to Ms Drover the release of documents which contain information on the content of deliberations of the Cabinet such as the views of individual Ministers undermines the principle of collective responsibility. Receipt of confidential advice and information on the matters that come before Cabinet and its committees are vital to the development of public policy and to the good administration of government affairs. The affidavit of Ms Drover dated 18 April 2024 confirms that the PDDR and its many attachments were attached to a Cabinet committee submission and prepared to inform a Cabinet committee deliberation. The drafts of the main document and the appendices were prepared for that express purpose.
The Respondent's submission that documents otherwise subject to a PII claim must be essential to an applicant's case, and likely to be made available only in exceptional circumstances, is based on documents containing the deliberations of Cabinet as referred to in PTTC at [48] citing NLC at 618, extracted above in [18]. The documents the subject of the PII claim described in Ms Drover's affidavits do not contain Cabinet deliberations. The material was prepared to place before Cabinet and can be accepted to have the purpose of informing Cabinet deliberations, a different category.
The PII claim should be considered in light of the nature of the documents sought. As identified in Uniform Evidence Law at 1276 in weighing up a PII claim the subject of the information or document is material, there distinguishing between national security concerns (a number of cases concerning national security matters are identified in footnote 844) and commercial matters, citing PTTC at [55] (which the Applicant also relied on). PTTC at [55] states:
[19]
[55] However, the cases have recognised that the commercial or contractual responsibilities of government, once entered, may well be able to be treated differently to questions of policy. To the extent that the executive branch of government participates in contractual arrangements and commercial undertakings (in the advancement of the public interest), there is much to be said for the proposition (present elsewhere in the legal system e.g. the Judiciary Act 1903 (Cth), s 64) that it should be treated like any other litigant in a commercial dispute in which it finds itself: cf Robinson v South Australia (No 2)[1931] AC 704 at 715; Harbours Corporation of Queensland v Vessey Chemicals Pty Ltd(1986) 12 FCR 60 at 63-64; Hooker Corporation Ltd v Darling Harbour Authority(1987) 14 ALD 110; Carey v Ontario[1986] 2 SCR 637 at [82]-[84]; Adelaide Brighton Cement Ltd v South Australia[1999] SASC 379; 75 SASR 209; Sportsbet Pty Ltd v New South Wales (No 3)[2009] FCA 1283; 262 ALR 27 at 38 [39]. These cases reveal that whilst not a hard and fast consideration, the commercial character of a contract as the subject matter of a document is an important consideration in the balancing exercise. ...
[20]
PTTC concerned a commercial dispute between a contractor and a statutory entity carrying out a project on behalf of the NSW government. While the circumstances arising in the Applicant's claim for compensation do not arise from a contractual dispute, the nature of the project giving rise to a commercial contract or agreement is relevant. The documents sought in category 3 concern a decision about how the NSW government should undertake a large public infrastructure project in 2017/2018, which project has been subsequently progressed presumably through entry into the necessary contract with the preferred builder. Construction is presently well advanced. Category 6 seeks more recent documents from October 2020 to January 2022 which may give rise to greater sensitivity in that events are recent.
In the course of argument about the likely effect of adducing the documents over which PII is claimed, the ability of the Court to limit the basis on which material could be made available, as specified in s 130(5)(d), arose in the context of this PII claim. Statutory construction principles require that the plain meaning of words in their context should be considered, Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation(Cth)(1981) 147 CLR 297; [1981] HCA 26 at 305 (Gibbs CJ) cited in Roden v Bandora Holdings Pty Ltd[2015] NSWLEC 191 at [42], Sydney Seaplanes Pty Ltd v Page(2021) 106 NSWLR 1; [2021] NSWCA 204 at [25]- [41] (Bell P). Section 130(5) states explicitly that a court is (emphasis added) to take into account under subpar (d) the likely effect of adducing evidence of the information or document and the means available to limit its publication for the purposes of subs (1). This provision is immediately preceded in the same chapeau by the words 'without limiting the matters that the court may (emphasis added) take into account for the purposes of subs (1)'. The use of both permissive and directive terms in the chapeau enables the conclusion that 'is' imposes a requirement on the judge deliberating on a PII claim. The plain meaning of the provision is that this must be part of the balancing process required by s 130(1). That construction appeared to be disputed by further written submissions of the Respondent filed with leave after the hearing. The submissions were to the effect that it would be an error to determine that there would be no harm to the public interest by ordering disclosure subject to confidentiality limitations and as a result fail to carry out the balancing exercise. While that can be accepted, the statutory scheme in s 130 requires expressly that such a matter be taken into account in the balancing exercise I am undertaking.
As the Applicant identified the weighing up process considered in HT v the Queen(2019) 269 CLR 403; [2019] HCA 40 (Kiefel CJ, Bell and Keane JJ) (a criminal sentencing case) included consideration of preservation of confidentiality at [44]-[46]:
[21]
[44] It is well known that the courts have modified and adapted the content of the general rules of open justice and procedural fairness in particular kinds of cases. Orders for non-publication are an example of the former. The non-disclosure of evidence in wardship cases is an example of the latter. More relevant for present purposes is litigation concerning trade secrets where disclosure is sometimes limited, for example with "confidentiality rings" being placed around disclosure and the persons who are permitted to see the confidential material. In Roussel Uclaf v Imperial Chemical Industries Plc, Aldous J observed that each case has to be decided on its own facts and on the broad principle that the court has the task of deciding how justice can be achieved taking into account the rights and needs of the parties. The relevant party should have as full a depth of disclosure as would be consistent with the adequate protection of the secret.
[45] In such cases, arrangements are often made to allow access to a person who represents the party from whom it is necessary to maintain confidentiality. And as Brereton J observed in Portal Software v Bodsworth, protective limitations may be introduced at the time of production or inspection. Orders can be made for inspection by an independent solicitor reporting directly to the court. This is similar to the position of an amicus curiae, which was referred to in the course of argument on the appeal. Orders for inspection might be limited to the party's lawyers or experts and not extended to the party itself. In such a circumstance the order has permitted to be conveyed to the party in some way such information as is necessary for the purpose of giving instructions. In cases such as the present it is difficult to accept that orders could not have been tailored to meet the concerns of the Commissioner, for example by providing the appellant's counsel with access to Exhibit C on terms which would have enabled him meaningfully to take instructions and make submissions.
[46] True it is that orders of the kind referred to, excepting disclosure from the general rule of the common law, are made for identifiable purposes: in the case of wards because the object of the proceedings is to protect and promote the best interests of the child; in the case of trade secrets because the very subject of the litigation may be destroyed. Clearly a case such as the present does not fall into either of those categories. But once it is accepted that there are certain classes of cases where a departure from the general rule may be justified for good reason, it makes it difficult to suggest that the court lacks jurisdiction to vary the basic principles of open and natural justice or to say that the proper administration of justice may not require it. The trade secrets cases in particular show that the general rule is not absolute. Consistently with the general rule of the common law regarding fairness in the conduct of proceedings, the concern of the courts is to avoid practical injustice.
[22]
In further written submissions, the Respondent submitted that orders to preserve confidentiality cannot be decisive in the PII analysis because of the attendant risks and the less than completely satisfactory nature of non-disclosure/limited access regimes, citing Commissioner of Policev Attorney General for New South Wales[2022] NSWSC 595 at [66] referring to Australian Statistician v Leighton Contractors Pty Ltd(2008) 36 WAR 83; [2008] WASCA 34 (Australian Statistician) at [49]-[52]. Each case must be considered on its facts. I note that the concern in Australian Statistician was that individual respondent identification in replying to Australian Bureau of Statistics surveys was an unacceptable risk and the Court of Appeal of Western Australia at [50] considered the risk of inadvertent communication during the trial was significant. If the Respondent's submissions are accepted no confidentiality regime would ever be contemplated, despite the provision in s 130(5)(d). That a confidentiality regime can be satisfactorily implemented by the Applicant's legal team if ordered can be considered. Such considerations must be informed by the nature and subject-matter of what is sought.
I accept the Applicant's submission that it is open to me to find that, following the required balancing act including finding that a document may be relevant to the Applicant's case, where PII attaches to part of or the whole of a document I can compel the Respondent to produce relevant sections of that document on a confidential basis. If material over which a PII claim is made does not appear relevant to the Applicant's claim, the claim will be upheld.
[23]
Category 3 whole of documents 2-34, parts of documents 35-41
[24]
The PDDR with attachments in final or draft form identified in the schedule attached to the amended notice of motion being documents 2-34 were provided to Cabinet or a committee of Cabinet and are Cabinet documents in that sense. The documents are voluminous reflecting the size and complexity of the WHBTL project. They also relate to the northern beaches link project which is not relevant to the Applicant's situation, as it accepts. In other words large parts of the PDDR and attachments are not relevant to the Applicant's claim. Relatively small sections have been highlighted by the Respondent as being called up by the NTP. Having weighed up the relevant matters under s 130(5) outlined above, I consider disclosure is warranted only to those parts identified as relevant and the PII claim is not upheld for those parts. An appropriate confidentiality regime will be required of the Applicant's legal representatives in relation to that material.
For documents 35-40 several weekly briefing reports the PII (partial claim) should be upheld.
For document 41 briefing to the Secretary dated 6 July 2021 the PII (partial claim) should be upheld.
[25]
Category 6 whole of document 1, parts of documents 42-43
[26]
Document 1 Contractor Change Notice dated 15 November 2021, another Cabinet document in that it was provided to Cabinet or a committee of Cabinet, contains limited entries potentially relevant to the Applicant's claim. Having weighed up the relevant matters under s 130(5) outlined above, I consider disclosure is warranted only to those parts identified as relevant and the PII claim is not upheld for those parts. An appropriate confidentiality regime will be required of the Applicant's legal representatives in relation to that material.
For document 42 Outcomes Report dated August 2021 the PII (partial claim) should be upheld.
For document 43 Approval History dated 17 January 2022 the PII (partial claim) should be upheld.
How best to reflect these orders in disposing of the amended notice of motion dated 24 April 2024 and the making of appropriate confidentiality orders will be discussed with the parties in order to finalise the notice of motion.
Three documents (1, 42, 43 in the schedule to the amended notice of motion) are identified by the Respondent in relation to category 6. The whole of Rozelle Interchange Contractor: Contractor Change Notice - Evaluation Report (Contractor Change Notice) (document 1) and parts of an Outcomes Report and Approval History (documents 42, 43) are the subject of the PII claim.
The Respondent read three affidavits of Ms Drover Deputy Secretary of Transport for NSW. Two non-confidential affidavits described Cabinet processes and the preparation of the documents in the schedule the subject of the PII claim. A third confidential affidavit was also read by me alone. It can be accepted that documents over which PII is claimed for category 3 for the whole of documents 2-34 were provided to Cabinet, are drafts of the final document that went to Cabinet or were an attachment to Cabinet submissions. Some of the documents in categories 3 and 6 that have been redacted to preserve claims of PII are demonstrated to reveal the contents of Cabinet decisions or the proposed or actual content of a Cabinet submission.
The Respondent argued that the PII claim should be upheld because all the documents are Cabinet documents or refer to Cabinet documents, were prepared on a confidential basis by the Respondent or third parties for Cabinet processes, and disclosure may have a detrimental impact on future commercial transactions in which the state may want to engage. Consistent with the observations of Allsop P (Hodgson JA and Sackville AJA agreeing) in New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 (PTTC) at [50], a decision by a government to enter into a commercial transaction is a matter of policy which PII ordinarily protects. Exceptional circumstances would be required before these documents are disclosed. The documents are not crucial to the proper determination of the Applicant's claim, do not advance the argument that financial costs and damages were actually incurred or suffered as a direct consequence of the compulsory acquisition and rescission, and a narrow construction of s 70 should be adopted.
The Applicant emphasised the balancing exercise that must be undertaken by the Court in weighing up the need for the documents to assist the Applicant's case with the PII considerations of the Respondent. That the documents are Cabinet documents alone is not decisive, PTTC at [45], Ku-ring-gai Council v West (2017) 95 NSWLR 1; [2017] NSWCA 54 at [89] (Basten JA).
Finding
Any person may raise a PII claim, as provided by s 130(2) of the Evidence Act. The Respondent relies on s 130(4)(f), that disclosure of the documents the subject of the PII claim will prejudice the proper functioning of the NSW government and can be taken to be information or a document relating to matters of state, to argue that the PII claim ought to be upheld. Subsection (5) sets out matters non-exhaustively that a court must consider in undertaking the necessary balancing exercise identified in s 130(1). Subparagraphs of subs (5) relevant to civil proceedings being (a), (c), (d), (e) are extracted above in [4]. Subparagraph (e) was not raised in argument. Subsection (5) states expressly that it does not limit the matters that a court may take into account.
The parties generally agreed on the applicable principles when undertaking the necessary balancing process as articulated in Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43 at 39 (Gibbs ACJ), Commonwealth v Northern Land Council (1993) 176 CLR 604; [1993] HCA 24 (NLC) at 618, and PTTC at [50] albeit with different emphases.
The discussion in PTTC referring to NLC at [45]‑[48] in relation to the balancing process that must be undertaken is particularly helpful as follows (emphasis in original):
[45] A number of propositions can be taken from their Honours' reasons to guide consideration of this issue. It is in the public interest that deliberations of Cabinet, including the decisions made by Cabinet, should remain confidential in support of the collective responsibility of Cabinet government: NLC at 615. It is the position of the body as responsible for the creation of state policy at the highest level that engenders the need for protection: NLC at 615. Thus, an important consideration is the protection of deliberations leading to the formulation of state policy, though this proposition should not be taken as meaning that only formulation of policy is to be protected. The threat of disclosure may impede or mute free and vigorous exchange in Cabinet: NLC at 615. Decision-making and policy development by Cabinet is to be uninhibited: NLC at 616. The division of claims into "class" and "contents" claims is rough, but acceptable, to differentiate types of documents the disclosure of which would injure the public interest, irrespective of contents, and those which ought not to be disclosed because of their contents: NLC at 616. Documents revealing Cabinet deliberations and decisions fall within the former class. But their immunity is not absolute: NLC at 616. The immunity must be weighed against the public interest in the administration of justice: NLC at 616.
[46] The nature of this weighing or balancing process is what lies at the heart of any contested application such as this. The majority in NLC at 616-617 approved a passage from the judgment of Gibbs ACJ in Sankey v Whitlam [1978] HCA 43; 142 CLR 1 at 43 which is worthy of repetition here:
"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."
[47] The majority in NLC at 617 elaborated upon the last sentence in this passage from Gibbs ACJ's reasons in Sankey v Whitlam saying:
"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."
[48] Their Honours then went on to say at 617 that the currency or controversiality of the subject matter is relevant to the balancing process. The character of the subject matter is, implicitly, also important. Their Honours had already spoken of policy and its formulation through the deliberations of Cabinet. Their Honours then emphasised that immunity of documents of Cabinet deliberations and Cabinet documents (ordinarily attracted irrespective of contents) is not absolute: NLC at 617-618. A court will initially lean against disclosure: NLC at 618. Whether circumstances are sufficient to displace the immunity depends in part on the nature of the class. As to this the majority said at 618:
"In the case of documents recording the actual deliberations of Cabinet, only considerations which are indeed exceptional would be sufficient to overcome the public interest in their immunity from disclosure, they being documents with a pre-eminent claim to confidentiality. The process of determining whether an order for disclosure of documents in that class should be made remains one of weighing the public interest in the maintenance of confidentiality against the public interest in the due administration of justice, but the degree of protection against disclosure which is called for by the nature of that class will dictate the paramountcy of the claim for immunity in all but quite exceptional situations.
Indeed, for our part we doubt whether the disclosure of the records of Cabinet deliberations upon matters which remain current or controversial would ever be warranted in civil proceedings. The public interest in avoiding serious damage to the proper working of government at the highest level must prevail over the interests of a litigant seeking to vindicate private rights. In criminal proceedings the position may be different."
…
The Respondent submitted that the Court is required to undertake a three-stage process, firstly to ascertain whether a legitimate forensic purpose exists, see Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at 681 (Hunt CJ at CL), secondly establishing the claim of PII and thirdly, the balancing exercise of weighing up these matters. The Applicant relied on PTTC at [42] to submit that essentially two stages of analysis are necessary as legitimate forensic purpose has been determined, which submission I agree with. The recent amendments as set out in the Applicant's FAPOC identify the forensic purpose of the information sought.
As I indicated during the hearing, I will not adopt for current purposes the narrow construction of s 70 of the Just Terms Act which the Respondent sought to argue, namely that acquisition for the purpose of that section should be taken to be the DOA of 1 October 2021, so that no events earlier than that date can be relevant. Further, the Respondent's submission that only material relevant to establishing the incurring of costs and damages can be relevant to a claim under s 70 is also too narrow an approach to statutory construction at this early stage of the proceeding and is an issue that requires substantive determination at the final hearing by the trial judge. I will be considering the case as articulated by the FAPOC which assumes a wider construction of s 70 and which renders events before the DOA potentially relevant as articulated in pars 18A and 35A of the FAPOC. I observe that compulsory acquisition by an acquiring authority is often a lengthy process as the Just Terms Act requires an acquiring authority to negotiate with a holder of an interest in land before proceeding to acquisition (s 10A), and the issuing of a PAN (s 12) as steps necessary to be undertaken before a formal notice of acquisition is issued under s 19.
For the purposes of this application the Applicant is relying on its case as now articulated in pars 18A particularly (c) and (d) and 35A particularly (c) and (d) of the FAPOC, extracted above in [9]. In par 18A, the financial costs incurred or damage suffered as a direct consequence of the acquisition includes those arising in subpar (c) the proposal to acquire the Land and preceding steps by the Respondent from 16 March 2017 to 1 October 2021 (DOA). Subparagraph (d) identifies any decision taken by the Respondent in relation to the Land between 16 March 2017 and 26 May 2022. The periods referred to in these paragraphs in the FAPOC include periods before the DOA of 1 October 2021.
The documents sought in categories 3 and 6 in the NTP are for periods of time which entirely or partially precede the DOA reflecting the case articulated in the FAPOC. Category 3 of the NTP seeks documents between 16 March 2017 and 8 March 2018 identifying the Balmain Leagues Club site as being affected by the WHT project. Category 6 of the NTP seeks documents between 7 October 2020 and 19 January 2022 outlining the business case for entering into a deed with a large construction company that refers to the Land, inter alia. Paragraph 35A of the FAPOC identifies the basis compensation is payable under s 70 in relation to the rescission including events between 26 May 2022 and 29 July 2022. The case articulated in par 18A of the FAPOC requires events earlier than the DOA to be investigated which underpins categories 3 and 6 in part in the NTP. The case articulated in par 35A includes a time period of up to 29 July 2022 and category 6 is also underpinned by that paragraph.
Factors which a court must consider in determining a PII claim in civil proceedings are identified in ss 130(5)(a)-(e) of the Evidence Act. The importance of the information sought (subpar (a)), and the nature of the cause of action to which the information relates (subpar (c)) must be considered. The Applicant submitted the purpose of calling for the documents was to examine the consequences the acquisition for the purpose of the WHTBL project (and its subsequent recission) had on the development timeline and the impact that the knowledge of the proposed acquisition had on the financing of the development of the Land and the development timeline. As the Applicant submitted, in seeking to make a claim under s 70 of the Just Terms Act the Respondent was the relevant decision maker in relation to the acquisition and rescission of the Applicant's interest in the Land. The Respondent has substantial control over the material which underpins the Applicant's case as currently articulated in the FAPOC. This must form part of the weighing up process concerning the public interest in disclosure as required by subs (5)(a) and (c). Based on the case articulated in the FAPOC pars 18A, 35A there is a basis to find that categories 3 and 6 seek documents potentially relevant or material to establishing the Applicant's case.
Subsection (5)(d) identifies the likely effect of adducing the evidence of the information or document and the means available to limit its publication. Dealing firstly with the likely effect of adducing the evidence, the Respondent emphasises that all of the documents concern Cabinet processes or divulge details of possible Cabinet deliberations so that disclosure will affect the proper functioning of the NSW government in that harm would be caused to the proper functioning of Cabinet applying the principle of collective Ministerial responsibility, relying on s 130(4)(f). The nature of these documents is supported by the affidavit evidence of Ms Drover dated 28 March 2024 in relation to the PDDR including its many annexures, and the Contractor Change Notice which were both attached to a Cabinet committee submission and prepared with the express purpose of informing Cabinet committee deliberations. The PDDR and appendices and Contractor Change Notice were attachments to different Cabinet submissions made to the expenditure review committee of Cabinet. Information otherwise marked in red outline in other documents being the weekly briefing reports, briefing to the Secretary, Outcomes Report and Approval History, identifies the contents of Cabinet decisions or the proposed or actual contents of a Cabinet submission.
The process of a Minister bringing forward matters to Cabinet in accordance with the NSW Cabinet Practice Manual is described by Ms Drover, with the workings of Cabinet subject to established conventions of confidentiality and collective responsibility. The role of Cabinet committees, that their deliberations and decisions have the same status as decisions of the full Cabinet, and that the same conventions and procedures apply to the conduct of Cabinet committees as apply to full Cabinet are also identified. According to Ms Drover the release of documents which contain information on the content of deliberations of the Cabinet such as the views of individual Ministers undermines the principle of collective responsibility. Receipt of confidential advice and information on the matters that come before Cabinet and its committees are vital to the development of public policy and to the good administration of government affairs. The affidavit of Ms Drover dated 18 April 2024 confirms that the PDDR and its many attachments were attached to a Cabinet committee submission and prepared to inform a Cabinet committee deliberation. The drafts of the main document and the appendices were prepared for that express purpose.
The Respondent's submission that documents otherwise subject to a PII claim must be essential to an applicant's case, and likely to be made available only in exceptional circumstances, is based on documents containing the deliberations of Cabinet as referred to in PTTC at [48] citing NLC at 618, extracted above in [18]. The documents the subject of the PII claim described in Ms Drover's affidavits do not contain Cabinet deliberations. The material was prepared to place before Cabinet and can be accepted to have the purpose of informing Cabinet deliberations, a different category.
The PII claim should be considered in light of the nature of the documents sought. As identified in Uniform Evidence Law at 1276 in weighing up a PII claim the subject of the information or document is material, there distinguishing between national security concerns (a number of cases concerning national security matters are identified in footnote 844) and commercial matters, citing PTTC at [55] (which the Applicant also relied on). PTTC at [55] states:
[55] However, the cases have recognised that the commercial or contractual responsibilities of government, once entered, may well be able to be treated differently to questions of policy. To the extent that the executive branch of government participates in contractual arrangements and commercial undertakings (in the advancement of the public interest), there is much to be said for the proposition (present elsewhere in the legal system e.g. the Judiciary Act 1903 (Cth), s 64) that it should be treated like any other litigant in a commercial dispute in which it finds itself: cf Robinson v South Australia (No 2) [1931] AC 704 at 715; Harbours Corporation of Queensland v Vessey Chemicals Pty Ltd (1986) 12 FCR 60 at 63-64; Hooker Corporation Ltd v Darling Harbour Authority (1987) 14 ALD 110; Carey v Ontario [1986] 2 SCR 637 at [82]-[84]; Adelaide Brighton Cement Ltd v South Australia [1999] SASC 379; 75 SASR 209; Sportsbet Pty Ltd v New South Wales (No 3) [2009] FCA 1283; 262 ALR 27 at 38 [39]. These cases reveal that whilst not a hard and fast consideration, the commercial character of a contract as the subject matter of a document is an important consideration in the balancing exercise. …
PTTC concerned a commercial dispute between a contractor and a statutory entity carrying out a project on behalf of the NSW government. While the circumstances arising in the Applicant's claim for compensation do not arise from a contractual dispute, the nature of the project giving rise to a commercial contract or agreement is relevant. The documents sought in category 3 concern a decision about how the NSW government should undertake a large public infrastructure project in 2017/2018, which project has been subsequently progressed presumably through entry into the necessary contract with the preferred builder. Construction is presently well advanced. Category 6 seeks more recent documents from October 2020 to January 2022 which may give rise to greater sensitivity in that events are recent.
In the course of argument about the likely effect of adducing the documents over which PII is claimed, the ability of the Court to limit the basis on which material could be made available, as specified in s 130(5)(d), arose in the context of this PII claim. Statutory construction principles require that the plain meaning of words in their context should be considered, Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297; [1981] HCA 26 at 305 (Gibbs CJ) cited in Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191 at [42], Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [25]-[41] (Bell P). Section 130(5) states explicitly that a court is (emphasis added) to take into account under subpar (d) the likely effect of adducing evidence of the information or document and the means available to limit its publication for the purposes of subs (1). This provision is immediately preceded in the same chapeau by the words 'without limiting the matters that the court may (emphasis added) take into account for the purposes of subs (1)'. The use of both permissive and directive terms in the chapeau enables the conclusion that 'is' imposes a requirement on the judge deliberating on a PII claim. The plain meaning of the provision is that this must be part of the balancing process required by s 130(1). That construction appeared to be disputed by further written submissions of the Respondent filed with leave after the hearing. The submissions were to the effect that it would be an error to determine that there would be no harm to the public interest by ordering disclosure subject to confidentiality limitations and as a result fail to carry out the balancing exercise. While that can be accepted, the statutory scheme in s 130 requires expressly that such a matter be taken into account in the balancing exercise I am undertaking.
As the Applicant identified the weighing up process considered in HT v the Queen (2019) 269 CLR 403; [2019] HCA 40 (Kiefel CJ, Bell and Keane JJ) (a criminal sentencing case) included consideration of preservation of confidentiality at [44]-[46]:
[44] It is well known that the courts have modified and adapted the content of the general rules of open justice and procedural fairness in particular kinds of cases. Orders for non-publication are an example of the former. The non-disclosure of evidence in wardship cases is an example of the latter. More relevant for present purposes is litigation concerning trade secrets where disclosure is sometimes limited, for example with "confidentiality rings" being placed around disclosure and the persons who are permitted to see the confidential material. In Roussel Uclaf v Imperial Chemical Industries Plc, Aldous J observed that each case has to be decided on its own facts and on the broad principle that the court has the task of deciding how justice can be achieved taking into account the rights and needs of the parties. The relevant party should have as full a depth of disclosure as would be consistent with the adequate protection of the secret.
[45] In such cases, arrangements are often made to allow access to a person who represents the party from whom it is necessary to maintain confidentiality. And as Brereton J observed in Portal Software v Bodsworth, protective limitations may be introduced at the time of production or inspection. Orders can be made for inspection by an independent solicitor reporting directly to the court. This is similar to the position of an amicus curiae, which was referred to in the course of argument on the appeal. Orders for inspection might be limited to the party's lawyers or experts and not extended to the party itself. In such a circumstance the order has permitted to be conveyed to the party in some way such information as is necessary for the purpose of giving instructions. In cases such as the present it is difficult to accept that orders could not have been tailored to meet the concerns of the Commissioner, for example by providing the appellant's counsel with access to Exhibit C on terms which would have enabled him meaningfully to take instructions and make submissions.
[46] True it is that orders of the kind referred to, excepting disclosure from the general rule of the common law, are made for identifiable purposes: in the case of wards because the object of the proceedings is to protect and promote the best interests of the child; in the case of trade secrets because the very subject of the litigation may be destroyed. Clearly a case such as the present does not fall into either of those categories. But once it is accepted that there are certain classes of cases where a departure from the general rule may be justified for good reason, it makes it difficult to suggest that the court lacks jurisdiction to vary the basic principles of open and natural justice or to say that the proper administration of justice may not require it. The trade secrets cases in particular show that the general rule is not absolute. Consistently with the general rule of the common law regarding fairness in the conduct of proceedings, the concern of the courts is to avoid practical injustice.
In further written submissions, the Respondent submitted that orders to preserve confidentiality cannot be decisive in the PII analysis because of the attendant risks and the less than completely satisfactory nature of non-disclosure/limited access regimes, citing Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595 at [66] referring to Australian Statistician v Leighton Contractors Pty Ltd (2008) 36 WAR 83; [2008] WASCA 34 (Australian Statistician) at [49]-[52]. Each case must be considered on its facts. I note that the concern in Australian Statistician was that individual respondent identification in replying to Australian Bureau of Statistics surveys was an unacceptable risk and the Court of Appeal of Western Australia at [50] considered the risk of inadvertent communication during the trial was significant. If the Respondent's submissions are accepted no confidentiality regime would ever be contemplated, despite the provision in s 130(5)(d). That a confidentiality regime can be satisfactorily implemented by the Applicant's legal team if ordered can be considered. Such considerations must be informed by the nature and subject-matter of what is sought.
I accept the Applicant's submission that it is open to me to find that, following the required balancing act including finding that a document may be relevant to the Applicant's case, where PII attaches to part of or the whole of a document I can compel the Respondent to produce relevant sections of that document on a confidential basis. If material over which a PII claim is made does not appear relevant to the Applicant's claim, the claim will be upheld.