Environment and Planning - Courts and tribunals with an environment jurisdiction - Tasmania - Resource Management and Planning Appeal Tribunal and its predecessors - Powers and duties on appeal - Summons for production of documents - Regulations requiring minutes of closed council meeting to be kept confidential.

Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s20(2).

Local Government (Meeting Procedures) Regulations 2005 (Tas), regs15(9), 34(3).

Rowell v Pratt [1938] AC 101; Allen & GDA Plumbing Pty Ltd v Townsley [1985] TASSC 69, B6/1985; Potts v Dennis Jones & Co Ltd (1995) 58 FCR 61, considered.

Local Government - Regulation and administration - Meetings - Minutes - Closed meeting - Regulation requiring minutes to be kept confidential - Summons for production of minutes to Resource Management and Planning Appeal Tribunal.

Local Government (Meeting Procedures) Regulations 2005 (Tas), regs15(9), 34(3).

Rowell v Pratt [1938] AC 101; Allen & GDA Plumbing Pty Ltd v Townsley [1985] TASSC 69, B6/1985; Potts v Dennis Jones & Co Ltd (1995) 58 FCR 61, considered.

Judgment Number: [2014] TASFC 2

1. This appeal concerns a question whether the Resource Management and Planning Appeal Tribunal ("the Tribunal") was in error in determining it had power to issue a summons for the production to it of minutes of a closed meeting of a council.
2. The appellant, Emmanuel Kalis, is a property developer. On 10 January 2011 the Kingborough Council ("the Council") refused his application for a permit to develop and use a shopping centre at 1734 Channel Highway in Margate. Mr Kalis appealed the refusal to the Tribunal. On 18 January 2012 the Tribunal upheld the appeal and directed that the application should be approved subject to conditions. After a further hearing, the Tribunal directed the issue of a permit for the use and development with the conditions it determined would apply.
3. By letter dated 14 August 2012 Mr Kalis applied to the Tribunal for an order that the Council pay his costs of the appeal. In support of his application he requested the Tribunal to issue a summons to the Council "requiring the council to produce that portion of the Minutes of council's meeting on 25 July 2011 at which it considered and determined to proceed with the appeal". The Council opposed the issue of such a summons. The Council contended that its meeting was closed pursuant to the Local Government (Meeting Procedures) Regulations 2005 ("the Meeting Procedures Regulations") and thus the minutes were confidential. On 24 September 2012 the Tribunal, constituted by the presiding member, Mrs Cunningham, rejected the Council's contentions and made an order in the following terms:

"That a summons issue requiring the Council to produce the extract of its minutes of the meeting on 25th June 2011 at which it determined to pursue the appeal following an offer from the proponent to settle without proceeding to a hearing".

1. A summons addressed to the General Manager of the Council was issued by the Registrar of the Tribunal in terms of the order on 24 September 2012.
2. The Council applied under the Judicial Review Act 2000 for review of the Tribunal's order. The application came before Tennent J. On 26 March 2013 her Honour found the Tribunal erred and quashed the Tribunal's order: Kingborough Council v Resource Management and Planning Appeal Tribunal [2013] TASSC 60. Mr Kalis now appeals to this Court. The only issue is whether Tennent J was in error in determining that it was beyond the power of the Tribunal to issue the summons.
3. The Tribunal is established by the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act"): s5(1). It has the jurisdiction conferred on it by the RMPAT Act and such jurisdiction as may be conferred on it by any other Act. The jurisdiction of the Tribunal to determine appeals against the decision of a planning authority to refuse to grant a permit is conferred by the Land Use Planning and Approvals Act 1993 ("LUPA"): s61(4). The RMPAT Act contains the following relevant provisions:

(a) The procedure of the Tribunal is within its own discretion: s16(1)(a).

(b) The Tribunal is not bound by the rules of evidence and, subject to the requirement that it must observe the rules of natural justice, it may inform itself on any matter in any way that it considers appropriate: s16(1)(c).

(c) By s20(2), the Tribunal has the following particular power:

"(2) For the purposes of an appeal to be, or being, heard by the Appeal Tribunal, a presiding member may summon a person to produce such documents (if any) as are specified in the summons or to appear at a hearing to give evidence ...".

(d) It is an offence punishable by a fine not exceeding 20 penalty units, for a person served with a summons to appear as a witness before the Tribunal to, without reasonable excuse, fail to attend as required by the summons: s30.

(e) It is an offence punishable by a fine not exceeding 20 penalty units if a person appearing as a witness at a hearing of the Tribunal, without reasonable excuse, fails to produce a document that that person was required to produce by a summons served on the person: s31(1)(c).

(f) It is an offence punishable by a fine not exceeding 20 penalty units if a person does anything that would, if the Tribunal were a court of record, constitute a contempt of that court: s33.

1. Councils are established under the Local Government Act 1993. Each council is a planning authority for the purposes of LUPA and councils are parties to each appeal against a planning refusal.
2. Meetings of a council are in public unless a decision is made by the council to close the meeting; the Meeting Procedures Regulations: reg14. A decision to close a meeting is made under reg15, whose relevant provisions read as follows:

(1) A council by absolute majority, or a council committee by simple majority, may close a meeting or part of a meeting to the public only for a reason specified in subregulation (2).

(2) A meeting or part of a meeting may be closed to the public when any one or more of the following matters are being or are to be discussed:

(a) personnel matters, including complaints against an employee of the council;

(c) contracts for the supply and purchase of goods or services;

(e) proposals for the council to acquire land or an interest in the land or for the disposal of land;

(f) information provided to the council on the condition it is kept confidential;

(h) matters relating to actual or possible litigation taken by or involving the council or an employee of the council;

(i) applications by councillors for leave of absence;

(3) Unless subregulation (4) applies, a council or council committee must not close a meeting or part of a meeting when it is -

(a) acting as a planning authority under the Land Use Planning and Approvals Act 1993; or

(b) considering whether or not to grant a permit under that Act; or

(c) considering proposals for the council to deal with public land under section 178 of the Act.

(4) A council or council committee may close a meeting when it is acting or considering as referred to in subregulation (3) if it is to consider any matter relating to actual or possible legal action taken by, or involving, the council.

(9) Subject to the Right to Information Act 2009, any discussions, decisions, reports or documents relating to a closed meeting are to be kept confidential unless the council or council committee, after considering privacy and confidentiality issues, authorises their release to the public."

1. The chairperson of a council meeting may exclude members of the public from a closed meeting but may invite any person to remain at the meeting to provide advice or information: reg15(6)(a) and (c).
2. Regulation 34(3) of the Meeting Procedures Regulations is also relevant:

"(3) The minutes of a closed meeting are to be kept confidential unless the council or council committee, after considering privacy and confidentiality issues, authorises the matters [sic] to be released to the public."

1. The Tribunal rejected the Council's submission that the minutes of a closed meeting were "exempt from production pursuant to the issue of a summons" because of the confidentiality conferred by regs15(9) and 34(3) of the Meeting Procedures Regulations. Tennent J concluded that the Tribunal was in error. Her Honour took the view that the confidentiality provisions affected the Tribunal's power to require production of the minutes. She concluded that the regulations "specifically provide for a regime of closed meetings in identified circumstances" and pointed to the confidentiality thereby conferred in the absence of any authorisation by the Council. She went on to assert that there "is no step which the Tribunal could take were the Council compelled to produce the minutes to maintain that confidentiality" and the "fact that even the tribunal accesses the material is enough to destroy the confidentiality provided for in the regulations".
2. The confidentiality conferred by reg15 is expressed to be subject to the Right to Information Act 2009: reg15(9). That Act confers on a person a right to be provided with information in the possession of a public authority. However the right does not extend to the official record of a closed meeting of a council which is exempt information.
3. It is not in issue before this Court that the Council meeting of 25 June 2011 was properly closed. This appeal is thus confined to the question of the Tribunal's power to issue the summons.
4. The Tribunal's power to order costs is contained in s28 of the RMPAT Act which provides:

(1) Each party to an appeal is to pay its own costs.

(2) However, the Appeal Tribunal may order a party to proceedings to pay all or part of the costs of another party to the proceedings if the Appeal Tribunal is satisfied that it is fair and reasonable to do so.

(3) For the purposes of subsection (2), the Appeal Tribunal may take into account any of the following matters:

(a) whether the proceedings appear to the Appeal Tribunal to have been instituted merely to delay or obstruct;

(b) whether in the Appeal Tribunal's opinion a party has raised frivolous or vexatious issues;

(c) the relative merits of the claims made by each of the parties;

(d) whether in the Appeal Tribunal's opinion a party has unnecessarily or unreasonably prolonged the proceedings or increased the costs of them;

(e) whether a party has failed to comply with a direction or order of the Appeal Tribunal without reasonable excuse;

(f) whether a party has failed to comply with any relevant law or planning scheme;

(g) the nature, complexity and outcome of the proceedings;

(h) the capacity of the parties to meet an order for costs;

(i) any other matter the Appeal Tribunal considers relevant."

1. It seems that Mr Kalis sought the production of the minutes of the closed meeting with a view to establishing that, in the words of s28(3)(d), the Council had "unnecessarily or unreasonably prolonged the proceedings or increased the costs of them".
2. There is nothing in the RMPAT Act that fetters the discretion of the Tribunal to issue a summons under s20(2). The critical question in this case is whether regs15(9) and 34(3) of the Meeting Procedures Regulations, properly construed, operate to deprive a presiding member of the Tribunal of the power to summon a person to produce the minutes of a closed meeting to which those sub-regulations apply. Both parties accept that, for the purposes of s20(2), the appeal was still being heard by the Tribunal when only the question of costs remained to be determined.
3. There have been a number of cases in which courts have had to decide whether statutory confidentiality or secrecy provisions did or did not prevail over the powers of courts to issue subpoenas for the production of documents. Many of those cases concerned provisions which, unlike the regulations we have to consider, prohibited individuals from divulging or communicating information to "any person". It is now well established that, for the purposes of such a provision, a court does not amount to a "person", and the power to issue a subpoena is therefore unaffected: Canadian Pacific Tobacco Co Ltd v Stapleton [1952] HCA 32; (1952) 86 CLR 1 at 6; Cowan v Stanhill Estates Pty Ltd [1966] VicRp 82; [1966] VR 604; Miller v Miller [1978] HCA 44; (1978) 141 CLR 269 at 277; Commissioner of Taxation v Nestle Australia Ltd [1986] FCA 368; (1985) 12 FCR 257 at 262 (Full Court); Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57 at 87; Irvin v Whitrod [1978] Qd R 137 at 140; Parkes Management Ltd v Perpetual Trustee Co Ltd [1979] 1 NSWLR 274 at 275 - 277; Sanko Steamship Co Ltd v Sumitomo Australia Ltd (1992) 37 FCR 353 at 358 - 359; Sydney Water Corporation v Persons Listed In the Schedules Trading As Pricewaterhousecoopers [2008] NSWSC 361; Transport Industries Insurance Co Ltd v Masel (unreported, Supreme Court of Victoria, Byrne J, 28 June 1996, BC9603683); Law Institute of Victoria v Irving [1990] VicRp 37; [1990] VR 429; Fitzgerald v Munro [1998] VSC 30; UTSA Pty Ltd v Ultra Tune Australia Pty Ltd [2003] VSC 87.
4. In Rowell v Pratt [1938] AC 101, the House of Lords considered the effect of a more general provision in the Agricultural Marketing Act 1931 (UK). The case concerned a return submitted by a litigant to the Potato Marketing Board. There was a secrecy provision that created an offence, subject to an exemption in relation to legal proceedings under that Act. There was no express general exemption in relation to legal proceedings. The subsection provided:

"Any person who discloses any information obtained by him in the exercise of any power conferred on him by or under the provisions of this Act ... shall be liable on conviction on indictment to imprisonment ... or a fine ... Provided that nothing in this section shall apply to the disclosure of any information in so far as it is required to be disclosed for the purpose of legal proceedings ... under this Act or any Scheme made thereunder, or for the purpose of any report of such proceedings, or in so far as the disclosure is required or authorised by this Act, or any Scheme made thereunder."

1. The House of Lords held unanimously that a subpoena from a County Court could not be used to compel the Potato Marketing Board to produce the relevant return. At 113, Lord Maugham, with whom the other members of the House concurred, said:

"... in my opinion it is not a correct proposition to say that there is a presumption that the secrecy attaching to such a return is not intended to be applicable if its production is called for in a legal proceeding unless the Legislature has in plain language declared the contrary. In my judgment the matter is one to be decided without any presumption either way. The reasons for secrecy in such a case are, I think, almost equally cogent whether the production of a return is demanded for some collateral purpose in an action or whether the information is sought for out of Court."

1. His Lordship went on to conclude, at 114, that the limited scope of the exemption made it clear that there was no general exemption for "information which a litigant may desire to have disclosed for the purposes of legal proceedings not under the Act". If the subsection was not intended to apply to disclosures to courts generally, there would have been no need for the exemption applicable only to proceedings under the same Act.
2. At 104 - 105, Lord Wright commented:

"It is inevitable that a Court of law should approach in a critical spirit any legislation which is calculated to impede a Court in the discharge of its duty to administer justice by preventing it from obtaining any material evidence of a nature likely to assist it to ascertain the truth. Hence a Court will be disposed, as was the majority of the Court of Appeal, to construe the section, if possible, so as to avoid that result."

"I do not agree that there is any rule of construction or any prima facie implication which makes it necessary to have express words to prohibit a person from producing a document or giving oral testimony if ordered to do so by a Court in legal proceedings. But perhaps it is more accurate to say that here the actual language can only be construed as covering such a case."

1. Lindgren J took a different view as to the need for express words in Potts v Dennis Jones & Co Ltd (1995) 58 FCR 61. That case concerned s55 of the Australian Securities Commission Act 1989 (Cth) ("the ASC Law"). That section empowered the Australian Securities Commission (as it then was) to "give directions preventing or restricting the publication of evidence given before, or of matters contained in documents lodged with, the Commission". A delegate of the Commission gave a direction that the publication of evidence or other material given at or relating to a particular hearing be prevented and restricted. On an application for costs in Federal Court proceedings, one of the parties served a notice to produce and a subpoena, both requiring the production of documents that were within the scope of the delegate's direction. Lindgren J held that the direction did not prevent the production of that material to the Court pursuant to a notice to produce or a subpoena. At 70 - 71 his Honour said:

"Subpoenas to produce documents and notices to produce are important in the administration of justice. Documentary evidence is often more reliable than oral testimony in truth finding. It would require clear language to reveal a legislative intention to displace the Court's power to issue the subpoena to ASC and to deprive Citibank [the issuing party] of the right to procure the issue of that subpoena and of the right to serve the notice to produce on the Jones interests [the recipients].

In my view, the word 'publication' as it occurs in s 55(1) of the ASC Law is not apt to catch, and was not intended to catch, production to a court pursuant to the coercive power of a subpoena or of a notice to produce having the effect of a subpoena. I think that it is proper to construe the word 'publication' in ASC's direction in this case as bearing the same meaning as the word bears in s 55(1).

... The legislature is able, when it wishes to do so, to provide expressly for immunity from an obligation which might otherwise exist to produce documents to a court, as the familiar s 16(3) of the Income Tax Assessment Act 1936 (Cth) shows."

1. Statutory provisions that unambiguously prohibit the production of documents in answer to a curial subpoena are also to be found in the Social Security (Administration) Act 1999 (Cth), s207, and the Telecommunications (Interception and Access) Act 1979 (Cth), s63. Such provisions are routinely encountered in modern Australian legislation. However no conclusion need be reached in this case as to the need for such an unambiguous provision unless this Court finds itself in a state of equipoise.
2. In Allen & GDA Plumbing Pty Ltd v Townsley [1985] TASSC 69, B6/1985, Underwood J (as he then was) had to consider a secrecy provision in the Consumer Affairs Act 1970, s10. The section read as follows:

"Except in the course of his duties under this Act no person shall disclose any information obtained by him in the exercise of any powers conferred on him by, or by virtue of his office or employment under, or for the purposes of, this Act."

1. That was another case that did not turn on the meaning of "any person". The plaintiffs in that case alleged that they had been defamed in a report made pursuant to the relevant statute. They sought orders for the production and inspection of certain documents by the defendants, who were individuals to whom the section applied. At [7], his Honour accepted that there was no presumption that, in the absence of express words, Parliament did not intend to prohibit the production to a court of material which came within the ambit of the section, following the House of Lords in Rowell v Pratt (above). After analysing the provisions of the relevant statute, he concluded that the statutory prohibition against disclosure did not prevent the Court from ordering the production and inspection of the documents sought. The prohibition was subject to an exception created by the words "except in the course of his duties under this Act". At [18], his Honour held that those words should be given a broad interpretation, and that it was part of the duty of the relevant individuals "to submit their actions to judicial scrutiny when properly called upon to do so".
2. Counsel for the appellant referred us to the judgment of Ferguson J in Smith v Victoria Police [2012] VSC 374; (2012) 36 VR 97. That case, like Allen & GDA Plumbing Pty Ltd v Townsley (above), involved the interpretation of words creating an exception to a statutory secrecy provision. Ferguson J undertook a review of cases concerning such exceptions at [12] - [30]. However this appeal does not raise any question as to the proper construction of a legislative exception to a secrecy provision.
3. In Royal Melbourne Hospital v Mathews [1993] VicRp 47; [1993] 1 VR 665, a hospital employee had co-operated with a police officer by handing over a patient's medical records. A confidentiality provision in the Health Services Act 1988 (Vic), s141(2), prohibited the giving of information if a patient could be identified from that information. The police officer had a search warrant, issued under the Crimes Act 1958 (Vic), s465, authorising him to seize the records of the patient in question. Beach J held that co-operating with the officer by handing over the records did not amount to a giving of information for the purposes of the confidentiality provision. At 669 his Honour said:

"The member of staff in question is no more giving the hospital file and/or records to the police officer armed with such a warrant than is a person who hands over his wallet to an armed bandit when threatened with death or injury if he fails to do so."

1. There are degrees of confidentiality, just as there are degrees of secrecy. If it were intended that the minutes of a closed meeting of a council were to be kept absolutely confidential, then it would be the duty of any council officer with custody of them to ensure that no outsider ever saw them in any circumstances, even in a situation where a police officer produced a warrant authorising their seizure. That result would be absurd. Clearly the task of construing the relevant regulations in this case involves making a value judgment as to the degree of confidentiality required by them.
2. Regulation 15(9) requires that "documents relating to a closed meeting are to be kept confidential ...". Similarly, reg34(3) requires that, "The minutes of a closed meeting are to be kept confidential ...". It is necessary to construe those two provisions in order to determine whether it is the duty of the council to keep the minutes of a closed meeting so confidential that it must not produce them to a court or tribunal in response to a subpoena or summons. That requires consideration of the purposes and context of the relevant provisions.
3. There is nothing in the Meeting Procedures Regulations or in the Local Government Act 1993, under which they were made, that makes non-compliance with reg15(9) or reg34(3) an offence. The regulations impose duties on individuals without imposing any form of sanction. But for the relevant confidentiality provisions, any member of the public would be entitled, on payment of a fee, to inspect the minutes of any council meeting or council committee meeting from which the public was excluded. That is because of reg35(2), which requires the general manager of each council "to ensure that the minutes and copies of any extract from the minutes of a meeting are available for inspection or for purchase on payment of the fee specified in Schedule 1".
4. Regulation 15(2), which is set out in [8] above, lists the discussion topics that may result in a council meeting or council committee meeting, or part of such a meeting, being closed. The list covers a wide range of matters in respect of which unrestricted public access to minutes would be undesirable for obvious reasons, particularly for reasons associated with privacy, commercial confidentiality, and security. It is difficult to see what purpose would be served by prohibiting the production in court proceedings of minutes relating to the discussion of the listed topics. Councils are democratically elected bodies. They are accountable to those who have the right to elect them. Whilst there is a place for confidential discussions by councils and their committees, and the protection of confidentiality from the public in general, it would be a very different thing if councils, when legal proceedings were in progress, were able to counter allegations of impropriety by refusing to produce the minutes of closed meetings to courts after they had been subpoenaed.
5. Since regs15(9) and 34(3) authorise a council or council committee, after considering privacy and confidentiality issues, to release to the public documents and information relating to closed meetings, it is clear that the confidentiality of closed meetings was not intended to be absolute. If the regulations were construed as providing absolute confidentiality, one could have a situation where the minutes of a closed meeting were immune from subpoenas one day, and publicly available the next day.
6. In our view the confidentiality provisions in the Meeting Procedures Regulations were intended only to prevent public access to the minutes of closed meetings, and to information as to discussions at closed meetings. They should not be interpreted as conferring immunity from subpoenas from courts. That is to say, the requirements that minutes, discussions, decisions, reports and documents "be kept confidential" should not be interpreted as requirements that such things be kept so confidential that courts must never learn of them.
7. Senior counsel for the Council emphasised that this case does not concern a subpoena issued by a court, but a summons for the production of documents to a statutory tribunal. He pointed out that the RMPAT Act does not empower the Tribunal to punish contempts or enforce its summonses. Under s33 of the RMPAT Act, contempt of the Tribunal is a summary offence. Non-compliance with a witness summons is a summary offence by virtue of s30. Non-compliance with a summons to produce a document is a summary offence by virtue of s31(1)(c). If a party to an appeal fails to comply with an order made by the Tribunal for the payment of costs, the order may be registered in a court of competent jurisdiction and enforced as if it were a judgment of that court: s28(6), (7).
8. In our view it is not significant that a litigant wishing to take enforcement action in relation to the Tribunal's proceedings cannot do so through the Tribunal but must go to a court. For the purposes of determining the extent of the obligations of confidentiality imposed by the Meeting Procedures Regulations, the role of the Tribunal is much more significant, as is the role of a summons under s20(3) in the proceedings of the Tribunal. The central role of the Tribunal is to hear and determine appeals from councils and other planning authorities. Its roles are to determine questions of law - for example, whether or not a particular development is prohibited under a planning scheme - and to make decisions as to the exercise of discretionary statutory powers. It makes such decisions in relation to disputes between litigants. Its functions are very similar to those of a court. Fact-finding is an important part of its core business. Its fact-finding is facilitated by it having the power to issue summonses compelling witnesses to attend and to produce documents. In those respects, its proceedings are very much like those of a court.
9. Quasi-judicial statutory tribunals with fact-finding roles, and with statutory powers to compel the attendance of witnesses and the production of documents, are now very common. In our view there is no reason why a legislative confidentiality provision in general terms should be interpreted as requiring documents to be kept confidential from tribunals but not courts. In our view it follows that there is no reason why the impact of the confidentiality provisions in the Meeting Procedures Regulations should vary in their application according to whether the production of documents is sought by means of a subpoena from a superior court or a summons under s20(2).
10. It follows that, in our view, regs15(9) and 34(3) did not require the minutes of the closed meeting to be kept so confidential that they were immune from a summons under s20(3) of the RMPAT Act.
11. That is not necessarily the end of the matter. There are a number of mechanisms by which the Tribunal, if persuaded that it was appropriate, could preserve a substantial degree of confidentiality in relation to the minutes:
    • Because s16(1)(c) of the RMPAT Act permits the Tribunal to inform itself on any matter in any way that it considers appropriate, it could ignore the minutes.
    • Because s16(1)(a) provides that the Tribunal's procedure is within its discretion, it could decide whether or not to permit Mr Kalis or his solicitors to inspect the minutes. It could require him and/or his solicitors to give undertakings as to confidentiality before permitting such an inspection.
    • If either party wished to rely on the minutes, the Tribunal could conduct the hearing, or part of the hearing, in private pursuant to s18 of the RMPAT Act.
    • The Tribunal could provide its reasons, or part of its reasons, to the parties without making them public. Whilst s24 of the RMPAT Act requires it to give reasons for its decisions, and to provide its reasons to the parties, there is no requirement for its reasons, or all of its reasons, to be made public in every case.
12. These are all matters that may have to be considered once the documents are produced to the Tribunal. In our view there is no reason why, at least as a general rule, the procedures of the Tribunal relating to the production of documents pursuant to a summons and the inspection of such documents should differ from those adopted by courts in relation to the production of documents pursuant to a subpoena and their inspection, as discussed by Moffitt P in National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 381 - 386.
13. For the reasons stated above, the appeal will be allowed, the orders of the learned primary judge set aside, and the Council's originating application dismissed.