Supreme Court of WA|2007-10-08|Before: Mr J, Miere J

LEIGHTON CONTRACTORS PTY LTD -v- PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA [No 5] [2007] WASC 233 (8 October 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : LEIGHTON CONTRACTORS PTY LTD -v- PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA [No 5] [2007] WASC 233

BETWEEN : LEIGHTON CONTRACTORS PTY LTD (ABN 98 000 893 667)

Civil practice and procedure - Production of documents - Claim of public interest immunity by ABS - Whether disclosure of documents would affect functioning of government - Whether disclosure injurious to public interest - Whether documents relevant - Whether public interest in disclosure outweighs public interest in confidentiality - Turns on own facts

Application granted in relation to certain documents

Australian Bureau of Statistics : Mr T Howe QC & Mr A J Power

Australian Bureau of Statistics : Australian Government Solicitor

1 LE MIERE J: The plaintiff requires the Australian Statistician to produce certain documents specified in its notice to produce documents dated 14 September 2007.

2 The Australian Statistician responded to the demand by stating that he does not have any documents within some of the categories of documents required to be produced and resists producing the remaining documents on the ground of public interest immunity (PII).

3 The trial of this action commenced on 12 September. The plaintiff's application was heard initially on 21 September during the course of the trial. Senior counsel for the plaintiff and senior counsel for the Australian Statistician referred to the party required to produce documents as the Australian Bureau of Statistics or ABS. I will follow the same practice.

4 The plaintiff is the contractor for construction of the Perth component of the railway extension between Perth and Mandurah. The contract is contained in a project deed entered into on 14 February 2004 (the Project Deed). The Project Deed provides for adjustments to the progress payments to the plaintiff by a rise and fall mechanism calculated in accordance with Annexure G of the Project Deed. The rise and fall calculation depends upon the application of two indexes. One index, which I will call the Table 42 index, was produced by the ABS and entitled 'Price Index of Materials used in Building other than House Building, excluding electrical materials and mechanic services'. Annexure G to the Project Deed provides that if an index is discontinued there must be substituted 'the nearest index consistent with the intention of this Annexure G so as to give effect to it'.

5 The ABS ceased producing and publishing the Table 42 index on 30 June 2004. The defendant and Main Roads requested the ABS to reinstate the discontinued Table 42 index and subsequently to create a replacement index. In October 2005 the ABS made available an index (the Table 48 index) with the same title as the discontinued Table 42 index.

6 A principal issue in the action is whether or not the Table 48 index is the nearest index within the meaning of Annexure G to the Project Deed.

7 One limb of the plaintiff's case is that table 48 is not an index within the meaning of the Project Deed. The plaintiff says that an index must be commercially acceptable and independent of the parties to qualify as an index within the meaning of the contract. An 'index' must be an index which would be objectively regarded by business people in the position of the parties as an index suitable for the purpose of calculating rise and fall under the contract.

8 The plaintiff says that Table 48 is not independent of the parties. The ABS agreed to prepare an index that was to cease at the end of 2007. It was prepared for the purposes of this contract. The plaintiff pleads that the Table 48 index was created by ABS at the request of the defendant, using a methodology and structure developed and agreed between ABS and the defendant.

9 Furthermore, the plaintiff says that Table 48 would not be regarded by businessmen in the position of the parties as suitable for the purpose of calculating rise and fall under the contract because it is, as a matter of methodology, completely flawed. It was prepared in haste. It was based on taking short-cuts and the usual rigour was not applied to it by the ABS.

10 Table 48 was created retrospectively in that the series commenced in June 2004 but first reported in September 2005. Table 48 is based on 43 material items. Twenty nine of those items are taken from the ABS Price Index of Materials used in House Building, Perth, Table 17 of ABS catalogue 6427 (the HB or Table 17 index). Five items are taken from the House Building, six capital cities index. The remaining items are 'special collection items' for which the ABS has undertaken new Perth price surveys. The price information for the nine special collection items was collected retrospectively in the sense that the respondents were asked to report prices for quarters up to 12 months prior to the surveys.

11 The plaintiff says that retrospective surveys are attended by fundamental problems arising from failing memories, incomplete records and failure to make the effort to accurately retrieve information.

12 On 22 February 2007, on the application of the plaintiff, I made orders for non-party discovery against ABS. On 22 March 2007 ABS filed and served a list of documents verified by an affidavit sworn by Geoffrey Mark Neideck. ABS claimed PII for nine classes of documents numbered 1 - 9 in sch 1, pt 2 to its list of documents.

13 By chamber summons dated 30 May 2007 the plaintiff sought orders that the ABS allow the plaintiff to inspect the documents numbered 1 - 9 in pt 2 of sch 1 of the affidavit of discovery of Geoffrey Mark Neideck sworn on 21 March 2007 falling into certain categories. The documents relate to Table 48, Table 42, Table 17 and other indexes - Index 4113 WA and Index 4113 National. I dismissed the plaintiff's application (Leighton Contractors Pty Ltd v Public Transport Authority [2007] WASC 196.)

14 I found that the documents to which access was sought by the plaintiff, directly or indirectly, are relevant to matters in issue in these proceedings. I found that harm would be done by the production of the documents sought by the plaintiff for two reasons. First, disclosure of the documents may enable the identification of respondents and or prices collected on a confidential basis. This is likely to lead to a reduction in the quality of the data collected by the ABS, increase the costs of the ABS and ultimately threaten the quality of the statistics produced by the ABS. Secondly, the disclosure of some of the documents may expose the ABS indexes to manipulation and the potential adverse consequences of the very existence of a risk of manipulation and or actual manipulation are serious harm to the economy and to government decision-making and policy development. I concluded that the public interest in avoiding serious damage to the economy and the proper working of government at the highest level prevailed over the interests of the plaintiff in obtaining access to the relevant documents.

15 By its notice to produce the plaintiff requires the ABS to produce the following documents:

The reports of interviews with respondents enrolled by the ABS to provide pricing information (Respondents) referred to in the statement of Mr Robert Norman Allsopp signed 11 September 2007.
Any email or other documents referred to in the statement of Mr Robert Norman Allsopp signed 11 September 2007 provided by respondents to the ABS recording or relating to price information for the quarters ended 30 June 2004, 30 September 2004, 31 December 2004, 31 March 2005 and 30 June 2005.
Any documents recording or relating to pricing information obtained from Respondents for the quarters ended 30 June 2004, 30 September 2004, 31 December 2004, 31 March 2005 and 30 June 2005.
Documents referring to, recording or commenting on any analysis carried out by the ABS to support the methodology of Table 48.

16 I observe that the documents all relate only to Table 48 and are much more limited in number than the documents the subject of the plaintiff's application of 30 May 2007.

17 I will first consider the documents referred to in [1] of the notice to produce, that is, reports of interviews with respondents enrolled by the ABS to provide pricing information referred to in the statement of Mr Allsopp.

18 In his witness statement Mr Allsopp says that in June 2005 he travelled to Perth to conduct some respondent interviews for the index that became the Table 48 index. Thirty respondent interviews were conducted. Eight were carried out by Mr Allsopp, eight were carried out by Mr Gary Whitehead and 14 were carried out jointly by Mr Allsopp and Mr Whitehead. In those interviews Mr Allsopp and Mr Whitehead asked for pricing information for specified items at that time and for previous quarters dating back to June 2004. All respondents provided current pricing information and approximately 50% provided back prices to June 2004. The remaining back price information was subsequently provided after the respondents checked records or made inquiries. Following the completion of the interviews and the provision of the back pricing information Mr Allsopp completed interview reports for each respondent.

19 In his affidavit affirmed 21 September 2007 Mr Harper says that the ABS has 25 documents corresponding to the description in [1] of the notice to produce. These documents consist of records of interview completed by ABS interviewers, Mr Allsopp and Mr Whitehead, during interviews with respondents in Perth in about June 2005 to collect pricing information for the construction of Table 48. A redacted copy of one of the documents is Annexure A to Mr Harper's affidavit. The document bears on its face the description Contact Report Form. I assume, as did senior counsel for the plaintiff and senior counsel for ABS, that the redacted contact report form is one of the interview report forms referred to by Mr Allsopp in his witness statement.

A redacted copy of one of the documents I have reviewed was provided to the Plaintiff on 19 September 2007 and is attached to this affidavit as Annexure A. Annexure A has been redacted to remove the names and addresses of the respondent, and all other 'below regimen level' information that allows for the identification of the respondent.

21 The plaintiff says that the interview reports are relevant for the following reasons. Table 48 is prepared using data collected for Table 17 (a house building index) and nine 'special collection items'. Special collection data for the period from June 2004 to September 2005 was collected retrospectively. It continued to be collected thereafter. The defendant has filed witness statements of ABS officers, including Mr Berger and Mr Whennan, concerning the preparation and character of Table 48 and its relationship to Table 42. Those statements seek to establish that Table 48 is, in effect, a continuation of Table 42. The defendant seeks to lead evidence from ABS officers to the effect that the weighting, methodology and data collection for Table 48, though different from Table 42, produced the same measure of indexation. The defendant has delivered witness statements by Mr Allsopp and Mr Whitehead in which they give evidence concerning the retrospective collection of price information for the nine special collection items. Mr Allsopp refers to interview forms. The plaintiff says that the methodology used to compile Table 48 is flawed and some of the data collected is incomplete and unreliable. The plaintiff says that Table 48 is not an index within the meaning of the contract.

22 The plaintiff wishes to test both the methodology used in compiling Table 48 and the integrity and reliability of the price information collected. However, the ABS now resists the production of the material that enables independent analysis of the process used to produce Table 48. In particular the plaintiff wishes to inspect the survey interview records recording the retrospective price information collected to compile Table 48. The plaintiff seeks to test the evidence of the ABS witnesses but submits that it can only do so by having access to the documents concerning Table 48, particularly the interview records. Otherwise, the plaintiff is faced with evidence in the form of assurances from ABS officers without being able to test them. The plaintiff says that there is evidence that suggests that there may be problems with the claim that Table 48 is an extension of Table 42. The plaintiff submits that the material sought from ABS is significant material that goes to issues at the heart of the dispute between the parties.

23 The office of Australian Statistician is created by the Australian Bureau of Statistics Act 1975 (Cth). Section 5 of the Australian Bureau of Statistics Act establishes the Australian Bureau of Statistics under the control of the Australian Statistician. The statutory functions of the ABS include to collect, compile, analyse and disseminate statistics and related information. The powers of the ABS are also governed by the Census and Statistics Act 1905 (Cth) (the Act).

24 Senior counsel for the plaintiff, Mr Young QC, submitted that the provisions of the Act reveal a statutory intent not to withhold information of the sort under consideration from use in litigation.

25 Section 12 provides for the Statistician to publish any compilation or analysis of information collected. Section 12(2) provides that results shall not be published or disseminated in a manner that is likely to enable the identification of a particular person or organisation.

26 Section 13 provides that the Minister may, by legislative instrument, make determinations providing for and in relation to the disclosure, with the approval of the Statistician, of information included in a specified class of information furnished in pursuance of the Act. Subsection 13(3) provides that '[i]nformation of a personal or domestic nature relating to a person shall not be disclosed in accordance with a determination in a manner that is likely to enable the identification of that person'. The corollary is that a determination may permit the publication of information that is likely to enable the identification of a particular person provided that it is not information of a personal or domestic nature.

27 Section 19 makes it an offence for an ABS officer to divulge to another person any information given under the Act unless the person divulges the information in accordance with a determination under s 13 or does so for the purposes of the Act.

28 In opposition to the plaintiff's application, the ABS relies upon the evidence contained in affidavits affirmed by Peter Harper on 13 June, 29 June, 2 July, 21 September and 25 September 2007 as well as other affidavits produced in response to the plaintiff's summons to inspect documents and a further affidavit affirmed by the Australian Statistician, Brian Pink, on 25 September 2007.

29 Mr Harper is a Deputy Australian Statistician at the ABS and is the head of the Economics Statistics Group. The Economics Statistics Group is responsible for producing price indexes (including producer price indexes such as the Table 42, Table 48, Table 17, Table 4113 National and Table 4113 WA indexes), macro-economic statistics (such as national accounts and the balance of payments), statistics on various aspects of the Australian economy such as agriculture, transport, technology and statistics on the environment.

30 In his affidavit of 13 June 2007, Mr Harper affirmed that in his opinion any release of the documents which the plaintiff then sought to inspect was contrary to the public interest for two broad reasons:

Information provided by businesses and individuals from whom the ABS collects prices and other data (Respondents) is confidential and is provided on that basis. The documents the plaintiff seeks to inspect identify businesses, prices and other information which is at a sufficient level of detail to enable the identification of respondents and/or prices collected on a confidential basis. Disclosure of these documents is likely to lead to a reduction in quality of the data collected by the ABS, increase the costs of the ABS and ultimately threaten the quality of the statistics produced by the ABS.
Information in the documents sought by the plaintiff may expose the ABS indexes to manipulation. The potential adverse consequences of the very existence of a risk of manipulation and/or actual manipulation are very grave.

31 In his affidavit of 13 June 2007 Mr Harper affirms that the 'Treasury, the Reserve Bank of Australia and other Australian government departments and agencies, and state and territory treasuries and agencies use and rely on producer price indexes when formulating economic policy and, in the case of the Reserve Bank, setting interest rates'.

32 In his affidavit Mr Harper explained how disclosure of the documents sought by the plaintiff is likely, directly or indirectly, to disclose the identity of respondents and lead to a reduction in the quality of data collected by the ABS, increase the costs of the ABS and ultimately threaten the quality of the statistics produced by the ABS.

33 In [102] - [126] Mr Harper demonstrated how the inspection of the documents sought by the plaintiff might disclose information that may expose the ABS indexes to manipulation.

34 At this point, I should refer to the two affidavits affirmed by Mr Harper on 13 June 2007. The affidavit that contains [118] - [122] was referred to by senior counsel for the ABS, Mr Howe QC, as the closed affidavit. That affidavit was supplied to the court in confidence and has not been provided to the plaintiff. The plaintiff has been provided with what Mr Howe described as the open affidavit of Mr Harper affirmed on 13 June 2007. In the open affidavit [118] - [122] are blacked out so that they cannot be read. Mr Howe QC submitted that the court should read the confidential paragraphs of the closed affidavit without disclosing them to the plaintiff because those paragraphs attract public interest immunity. At the hearing of the plaintiff's application of 30 May 2007 I received the closed affidavit on the basis that I would subsequently consider whether or not to read [118] - [122] of the closed affidavit and if so whether the material should be disclosed to the plaintiff. I subsequently read those paragraphs of the closed affidavit and determined that PII applied to those paragraphs and hence they were not disclosed to the plaintiff. At the hearing of this application I received the closed affidavit on the basis that I would subsequently consider whether or not to read [118] - [122] of the closed affidavit and if so whether the material should be disclosed to the plaintiff.

35 I have determined that it is not necessary to read the confidential paragraphs of the closed affidavit to assist in my consideration of Mr Harper's evidence that disclosure of the data contained in the documents the subject of the ABS PII claim could be used to manipulate the ABS indexes.

36 The plaintiff challenged Mr Harper's beliefs or assertions that inspection of the documents sought by the plaintiff would have the consequences put forward by Mr Harper.

37 In his affidavit of 21 September 2007 Mr Harper affirmed that the copy of the contact report form that is Annexure A to his affidavit has been redacted to remove the names and addresses of the respondent and 'all other "below regimen" information that allows for the identification of the respondent'. The contact report form consists of sections entitled 'Respondent Details' and 'Scheduler and Interviewer Section' before the heading 'Interview Report & Mail Questionnaire' which comprises 11 numbered sections. Some of those sections address information concerning the company, its operations and other information that may enable an astute and well informed reader to identify the respondent company. Other sections address matters less obviously likely to enable identification of the respondent. Sections 5 'Pricing Policy', 6 'Specifications, Prices & Weights', 7 'Specifications - Pricing Basis', 8 'List and order of Specifications after Review', 9 'Revisions Data/ Back Prices', 10 'Supplementary Comments' and 11 'Post Interview Details' appear particularly relevant to the matters the plaintiff wishes to examine. All of the information recorded in those sections of Annexure A has been redacted except for the fragments 'utilities) etc increases', and 'Weightings are based on respondents sales/ product knowledge' and 'OTHB' appearing in different parts of those sections. In short no meaningful information remains.

38 On 21 September Mr Howe tendered as what subsequently became Exhibit ABS13, a further redacted copy of the contact report form but with less information redacted than in Annexure A. A similarly redacted version of Annexure B became Exhibit ABS14. Section 6 of Exhibit ABS13 discloses some prices and values under certain column headings, percentage weights and some other information. Exhibit ABS13 does not contain any product specifications or descriptions that would enable the prices or weights to be linked with any product or product group. Annexure C to Mr Harper's affidavit includes a copy of Annexure A with handwritten annotations describing in general terms the nature of the information that has been redacted.

39 The current Australian Statistician is Brian Pink. Mr Pink has affirmed an affidavit in support of the claim for PII. Mr Pink deposes that he agrees with the opinion of Mr Harper in his affidavit of 25 September 2007 concerning the existence, nature and extent of the risk of adverse consequences arising from disclosure of the kind of information redacted from Exhibits ABS13 and ABS14. Mr Pink earlier deposed in an affidavit affirmed on 18 June 2007 that disclosure of the documents the subject of the ABS PII claim could lead to an overall reduction in the quality of the statistics produced by the ABS and could expose the indexes to which the relevant documents relate to manipulation, and would not be in the public interest.

40 I privately inspected the documents the subject of [1] of the notice to produce.

41 Section 5 of each report is in two subsections. Subsection (a) contains information identifying the respondent, competitors, and details of its operations. The information is not reasonably necessary for the plaintiff to pursue the matters in issue. The information in section 5(b) concerns recent price changes that Mr Harper says is below regimen level but would not of itself identify the respondent.

42 The first part of s 6 of the interview report consists of a table which sets out estimated company annual ($) values, relating to the capital city total. The information contains product detail and annual sales information. The information is not relevant to the issues in this case. The next part of s 6 consists of a table under the heading 'Show all estimated capital city annual values for HB' and then a further table under the heading 'Show all estimated capital city annual values for OTHB'. The information identifies the product, estimated annual value, price for the quarter, previous quarter's price, spec id and weight. All of the information is relevant to the matters in issue except for the estimated annual value.

43 Section 7 contains two boxes with comments. The redacted copy says that the comments contain information on prices below regimen level and details of price calculations below regimen level. The information is relevant to the issues in this case. The information would not enable a reader to identify the respondent. Section 8 contains information that is not relevant to the issues in this action. Section 9 contains no relevant information. Section 10 contains comments that are relevant to the issues in this proceeding and the comments would not enable a reader to identify the respondent except for the name appearing at the commencement of the comments. The name could be redacted. The only information redacted in s 11 is a name in paragraph (a).

44 I have examined the other contact report forms produced. The information redacted and its relevance and capacity to identify the respondent are in each case similar to the matters I have set out above in relation to the contact report form that is Annexure A to Mr Harper's affidavit.

45 The plaintiff seeks production of the documents on the basis that they be disclosed to counsel and solicitors only with redaction of names and addresses of respondents.

46 The common law doctrine of public interest immunity was described by Gibbs ACJ in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1:

The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However, the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer [1968] UKHL 2; [1968] AC 910 at p 940, as follows:

'There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.'

It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weight the one competing aspect of the public interest against the other, and decide where the balance lies. [37]

47 The view has been expressed that a public interest that gives rise to public interest immunity requires a dimension that is governmental in character: R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 [55].

48 In Royal Women's Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85; (2006) 15 VR 22, the Court of Appeal of Victoria considered public interest immunity in relation to hospital records. In conducting a preliminary investigation of a complaint made by a third party alleging that medical staff at the hospital had terminated a woman's pregnancy in order to preserve her psychiatric health, the Medical Practitioners Board of Victoria sought access to the woman's medical records kept at the hospital. The woman declined to consent to the release of her records by reason of which the hospital and the woman's treating medical practitioners declined to release her records or supply information about her treatment in the hospital. The Board executed a search warrant and the documents seized at the hospital pursuant to the warrant were lodged with the Magistrates Court. In the hospital's application for an order that the seized documents be returned to it, the hospital argued amongst other things that they were protected from disclosure on the ground of public interest immunity. The Magistrate rejected the hospital's claim. An appeal to a judge of the Supreme Court of Victoria was dismissed. The hospital applied by leave to the Victorian Court of Appeal on the ground that the judge had erred in failing to decide that the documents should not be produced because they should be regarded as being protected by the principle of public interest immunity.

49 The Court of Appeal dismissed the appeal. Warren CJ held that public interest immunity arose because of the need to safeguard the proper functioning of the executive arm of government and of the public service and that the class of documents in question was not governmental in character. Maxwell P held that it was the character of the information contained in the documents that determined whether a document (or class of documents) attracted public interest immunity. The documents in question did not attract public interest immunity because the information was 'wholly unrelated to decision-making "at the highest levels of government".' Charles JA held that public interest immunity was 'restricted to what must be kept secret for the protection of government at the highest levels and in sensitive areas of executive responsibility, governmental function in this context being defined to include the courts and bodies exercising statutory duties and functions in circumstances analogous to the police informer immunity'. A hospital, as a statutory instrumentality, was part of the public service and potentially within the reach of public interest immunity but the holding of medical records by it was not a governmental function and therefore did not attract the immunity.

50 The contact report forms do not contain information that relates to decision making at the highest levels of government or is governmental in character. The information contained within the forms was collected solely for the purpose of constructing the Table 48 index. The Table 48 index was designed, constructed and produced by the ABS at the request of and for the purposes of the defendant and Main Roads. Neither the information in the contact report forms nor Table 48 are used by the ABS to construct other indexes. Table 48 is not used by the Australian government or any of its agencies. The information in the contact report forms or in Table 48 does not affect the proper functioning of the Australian government.

51 The ABS submits that the interview reports contain information that was disclosed to the ABS in confidence. The ABS has power under the Act to direct a person to complete forms and answer questions. However, these powers are used sparingly, as the ABS prefers to seek the willing co-operation of respondents. This approach has the effect of encouraging respondents to provide accurate data in a timely manner. It has also assisted the ABS to build relationships with respondents. The ABS's experience has been that data provided by respondents at the direction of the ABS is often of a poorer quality than data provided voluntarily. The ABS provides an assurance to all respondents that the data collected by the ABS will remain confidential to the ABS. Mr Harper states that in his opinion the release of data which may directly or indirectly disclose the identity of respondents or the prices collected by the ABS will have the following effects:

the ABS will not be able to assure householders and businesses of the confidentiality of the information they provide to the ABS under the Act;
lower response rates as respondents would be less willing to co-operate and provide the information that the ABS requires;

more misleading and false information would be provided to the ABS;

the ABS would have to compel more householders and businesses to provide data, leading to greater costs and greater delay in obtaining data;
the timeliness of release of information by the ABS would be reduced as longer periods of time would be needed for data collection purposes and for checking and analysing data;
the value of the data to users would be reduced as the data would be regarded as less reliable, valid or timely as a result of the poorer quality of data being collected and delays in collection; and
the reputation of the ABS would be compromised both in Australia and in the international environment. [66]

52 The foundation for an objection to produce documents on the grounds of public interest privilege is not that documents are confidential but that the information cannot be disclosed without injury to the public interest. However, the categories of documents which attract public interest immunity are not closed. They may include circumstances in which the public interest is best served by preserving the confidential basis upon which business information is required to be given by statute: Jacobsen v Rogers [1995] HCA 6; (1995) 182 CLR 572 [18].

53 The categories of public interest immunity are not closed. In Royal Women's Hospital v Medical Practitioners Board of Victoria Warren CJ said:

It has been said - and I would agree, notwithstanding the further stipulations that follow in these reasons - that the categories of public interest immunity should not be regarded as intractably closed. For example, in D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171, the House of Lords recognised a category of public interest with respect to the reporting of confidential information on child abuse; while in Aboriginal Sacred Sites Protection Authority v Maurice (1986) 10 FCR 104, Bowen CJ and Woodward J held that a public interest immunity could be recognised with respect to secret and sacred aboriginal information and beliefs.

Further, in Australian National Airlines Commission v Commonwealth [1975] HCA 33; (1975) 132 CLR 582 at 591, Mason J said:

'[I]t would be an error to regard the categories of documents which attract privilege as necessarily closed. As time passes it is inevitable that new classes of documents important to the working of government will come into existence and that detriment to the public interest may occur in circumstances which cannot presently be foreseen.'

The doctrine of public interest immunity is usually and most properly invoked to protect the functioning of government [22] - [23]. (footnote omitted)

54 The disclosure of the contact report forms with the names and addresses of the respondents and other identifying material redacted to the counsel and solicitors for the parties, will not harm the functioning of government or otherwise harm the public interest.

55 The respondents provided the information in the contact report forms to the ABS interviewers. They were assured that the information would be kept confidential. Indeed, the Act requires that the information be kept confidential. However, the evidence before the court does not establish that if the court orders suitably redacted copies of the contact report forms to be disclosed to counsel and solicitors for the parties that will cause respondents to ABS surveys to less willingly co-operate with the ABS in providing information in the future.

56 There may be a public interest in securing the voluntary supply of information to statutory agencies even where there is a power under the statute which enables the agency to acquire the information compulsorily. However, that is not sufficient to give rise to a public interest immunity. In this case the disclosure of the limited information required by the plaintiff, which excludes the name and address of the respondents, does not give rise to public interest immunity. The limited disclosure of the interview reports to counsel and solicitors for the parties is not likely to lead to a reduction in the quality of the data collected by the ABS, increase the costs of the ABS or threaten the quality of the statistics produced by the ABS.

57 The second basis upon which the ABS submits disclosure of the documents would harm the public interest is that the disclosure of information in the documents may expose the ABS indexes to manipulation.

58 I am satisfied on the evidence before the court that the disclosure of suitably redacted copies of the contact report forms to counsel and solicitors for the parties will not expose any ABS index to manipulation. The information in the forms relates only to the Table 48 index. That index is to be discontinued after December 2007. That is, information will be collected for, and the index prepared for, only one further quarter. The information is to be disclosed only to counsel and solicitors for the parties. Mr Howe QC submits that there is a danger of counsel or solicitors inadvertently disclosing the material. Mr Howe has cited authorities drawing attention to the risk of inadvertent disclosure. The risk of inadvertent disclosure must take into account the nature and detail of the information and for how long it must remain confidential. In this case, the relevant information is product specific prices. The risk of manipulation will cease in December 2007. I am satisfied that there is no significant risk of inadvertent disclosure leading to manipulation of the Table 48 index.

59 For the reasons stated I find that the limited disclosure of the interview reports sought by the plaintiff will not harm the public interest. If, contrary to my finding, the disclosure is injurious to the public interest then it is necessary to balance the public interest in maintaining the confidentiality of the interview reports against the public interest in disclosing the information to the parties. The court must decide which aspect of the public interest predominates, that is whether the public interest which requires that the documents should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence.

60 The ABS submits that the overriding consideration is the recipient's dependence upon the continuing availability of the information for the proper performance of its public duties or functions and the risk of manipulation of the index and its consequences.

61 The risk of harm to the public interest from the disclosure of the documents to the parties is slight. It is outweighed by the public interest that the court should not be denied access to relevant evidence.

Category 2 - documents provided by respondents etc

62 The ABS responded to the notice to produce by stating that there was nothing to produce, in that any information received from respondents following the interviews in Perth was entered into working documents and they are the documents that are category 3 documents. There were no documents within the description of [2] of the notice to produce apart from the documents which are referred to in [3].

63 I will go on to consider the category 3 documents.

64 The ABS says that the category 3 documents consist of two sub-categories. The first category consists of five working documents that are referred to by Mr Harper in his affidavit of 21 September 2007. The second category were referred to by Mr Howe as follows:

The second subcategory of documents falling within category 3 are documents which it would take many weeks to produce; in fact, there are no such documents in existence. They would have to be constructed from compressed and uncompressed data which is stored in electronic form ...

The ABS's data retention policy requires retention of data obtained by respondents and so on for five quarters only and then following expiry of that period the data is both compressed and stored on a CD-ROM and stored off site in an uncompressed state ... that data ... in compressed and uncompressed state is complete gobbledegook. It's not specific to table 48 and if one prints, for instance, page after page of that it looks entirely like a set of incomprehensible hieroglyphics. The only way ... it can be retrieved ... is by a series of iterative interrogations of the database that are extraordinarily time consuming and complex and the data isn't stored on the database with a view to being extracted in the way that would be required to produce documents within the fourth category (ts 1290 - 1291).

65 In reply, senior counsel for the plaintiff did not respond to that submission. In effect, the application proceeded on the basis that the only documents which fall within category 3 that are available for production are the five working documents referred to by Mr Harper. I will consider those documents.

66 In his affidavit of 21 September 2005 Mr Harper affirmed that the ABS has five documents that respond to this category of the plaintiff's notice to produce. These documents are working documents compiled by ABS staff in order to collate the raw data provided to the ABS by the respondents. Mr Harper went on to say that the documents consist of or record very specific 'below regimen level' data, the disclosure of which is contrary to the public interest. Again, Mr Harper affirmed, the information contained in the documents if disclosed, is the very information held by the ABS which is most likely to lead to the adverse consequences set out in Mr Harper's affidavit of 13 June 2007. A sample document of these 'working documents' is Annexure B to Mr Harper's affidavit of 21 September 2007. Annexure B has been redacted to remove the names and addresses of the respondent and all other 'below regimen level' information that would allow for the identification of the respondent. Annexure C to Mr Harper's affidavit includes a copy of Annexure B with handwritten annotations describing in general terms the nature of the information that has been redacted.

67 On 21 September 2007 Mr Howe tendered as what subsequently became Exhibit ABS14 a further redacted copy of the working document that is Annexure B to his affidavit of 21 September.

68 I have privately inspected the five working documents produced to the court.

69 In considering whether these documents should or should not be produced by reason of public interest immunity, the same or similar considerations apply as apply to the consideration of whether or not the category 1 documents should be produced.

70 The working documents contain names of respondents and employees or informants on behalf of respondents. They also contain what appear to be product descriptions and product descriptions which include brand names or are brand specific. The working documents include prices for specified products.

71 For the reasons given in relation to the category 1 documents, the disclosure of these documents to counsel and solicitors for the parties, with respondents' names redacted, would not be injurious to the public interest.

72 If, contrary to my finding, disclosure of the documents would be injurious to the public interest then it is necessary to undertake the balancing exercise to weigh the public interest which requires that the documents should not be produced against the public interest in their disclosure. For the reasons I stated in relation to the category 1 documents, I find that the public interest in the production of the documents outweighs the public interest in not disclosing them to the parties. That is, the public interest that the court should not be denied access to relevant evidence outweighs any public interest which requires that the documents should not be produced.

73 As I understand it, the ABS reviewed its position in relation to the category 4 documents, so that by the final day of the hearing of this application, there were only two documents meeting the description in [4] that had not previously been disclosed to the plaintiff. The documents covered by the notice to produce were produced to the court.

74 One of those documents is an email of 18 September 2007 at 7.28 am from Gary Whitehead to EAD Producer Prices on the subject 'OTHB Commodities visited in WA'. Mr Howe for the ABS confirmed in court on 24 September 2007 that the email has now been produced to the parties.

75 The second document is the document of which Exhibit P11 is a redacted copy. I have inspected an unredacted copy of Exhibit P11. The information redacted does not relate to Table 48 except possibly for the two lines immediately preceding the Table 'Stage of Production: Percentage Change' on page 9 of the document. Those lines are not relevant to the matters in issue.

76 I find that the category 1 'contact report forms' and the category 3 'working documents' should be produced to the parties on the following conditions:

The documents produced may be redacted to remove the names and addresses of respondents, employees of respondents and other representatives of respondents.
One copy of each of the documents produced should be produced to each of the plaintiff and the defendant.
The documents produced are to be inspected only by counsel and solicitors for each of the parties.
The parties are not to make any copy of the documents produced to them.
At the conclusion of the trial each of the parties is to return to the ABS the documents produced to it.

Bureau of Statistics Act 1975

LEIGHTON CONTRACTORS PTY LTD -v- PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA [No 5] [2007] WASC 233 (8 October 2007)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (100 paragraphs)

LEIGHTON CONTRACTORS PTY LTD -v- PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA [No 5] [2007] WASC 233 (8 October 2007)

Legislation Cited (2)

Cases Cited (6)