Metro Environmental Logistics Pty Limited v Newcastle Port Corporation trading as Port Authority of New South Wales

Decision: Motion dismissed.

Catchwords: EVIDENCE – Evidence Act 1995 (NSW) s 130 – The Cabinet Office claims public interest immunity over documents – The documents contain commercially sensitive information which would undermine the ability and confidence of the Cabinet Office to maintain confidentiality over internal dealings – The limited forensic value of the documents is outweighed by the public interest in preserving confidentiality – There is no exceptional situation warranting disclosure of the documents – HELD – Claim of public interest immunity upheld

Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law s 21
Evidence Act 1995 (NSW) s 130

Cases Cited: Ku-ring-gai Council v West (2017) 95 NSWLR 1; [2017] NSWCA 54
Metro Environmental Logistics Pty Ltd v Newcastle Port Corporation (No 4) [2024] NSWSC 657
New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60

Category: Procedural rulings

Parties: Metro Environmental Logistics Pty Limited (Plaintiff)
Newcastle Port Corporation trading as Port Authority of New South Wales (Defendant / Respondent)

Representation: Counsel:
J Emmett SC (Plaintiff / Applicant)
J Clarke SC / D Birch (Defendant / Respondent and Intervenor)
S Fitzpatrick SC (Defendant)
Solicitors:
McCullough Robertson (Plaintiff / Applicant)
Crown Solicitor’s Office (Defendant / Respondent and Intervenor)
HWL Ebsworth Lawyers (Defendant)

File Number(s): 2022/00101288

Publication restriction: Nil

JUDGMENT

1. This judgment is in a somewhat truncated form because of the urgency of the requirement of the Court to rule on a claim by the defendant and the Cabinet Office of the Government of New South Wales (Cabinet) to public interest immunity privilege under s 130(1) of the Evidence Act 1995 (NSW) which provides:

If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

2. The urgency arises because there is currently on foot and proceeding before a judge of this Court (Brereton J) a claim for damages by the plaintiff against the defendant (a State corporation and an emanation of the Crown) which owns Glebe Island. The plaintiff and the defendant entered into an agreement for lease in contemplation that there would be constructed on the island, an integrated facility for reception and distribution of building materials.

3. The agreement contained certain conditions which if fulfilled would have entitled the plaintiff to take a 10 year lease (apparently with the ability for the defendant to extend it for another 10 years). The conditions were not fulfilled and no lease came into existence.

4. For additional background see Metro Environmental Logistics Pty Ltd v Newcastle Port Corporation (No 4) [2024] NSWSC 657 (Stevenson J).

5. The plaintiff says that the defendant engaged in unconscionable conduct in contravention of s 21 of the Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law in the negotiation and conclusion of the agreement for lease by which the plaintiff says it suffered damages consisting of wasted expense and more importantly, loss of a valuable commercial opportunity to have the lease and the prospect of an extension of it. Part of the underlying thesis for the claim is that the agreement for lease would, but for the alleged unconscionable conduct not have contained the conditions and the plaintiff would have had a lease.

6. If the plaintiff succeeds in establishing liability on the part of the defendant for a loss of opportunity the question of valuation of that opportunity will arise which will in turn necessitate identification of the benefits it would have had by getting the lease and valuing those benefits.

7. Sections 130(2), (4)(f), (5)(a), (d) and (e) provide:

(2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).

…

(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would—

…

(f) prejudice the proper functioning of the government of the Commonwealth or a State.

(5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters—

(a) the importance of the information or the document in the proceeding,

…

(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication,

(e) whether the substance of the information or document has already been published,

8. At an early stage of the proceedings the defendant was ordered to give preliminary discovery to the plaintiff, which it did. It claimed public interest immunity privilege over a significant number of documents.

9. By Notice of Motion filed 23 July 2025 (a somewhat lengthy interval after preliminary discovery was given) the plaintiff seeks to challenge the claim. The ambit of the challenge was significantly narrowed by the time I heard the motion. Two categories of documents remained in dispute. One consisted of over 200 documents in which redactions had been made. The other consists of material brought into existence by order of and for the benefit of Cabinet (including committees of the Cabinet).

10. The first category presented no difficulty and I ruled on it ex tempore. Both sides agreed that reasons were not required. The redactions were, for the most part, minimal and related to confidential business of the Cabinet. I can see no, or no meaningful part that that information could play in the proceedings.

11. Six documents remained. They were identified by the following document ID numbers and descriptions:

12. PAN_0049171 Attachment to Draft Cabinet Submission 27 October 2017

13. PAN_0049174 Attachment to Draft Cabinet Submission 27 October 2017

14. PAN_0049401 Attachment to Draft Cabinet Submission 29 November 2017

15. PAN_0049544 Draft Cabinet Submission 8 December 2017

16. PAN_0009072 Draft Cabinet Submission 8 December 2017

17. PAN_0009762 Draft Cabinet Submission 8 December 2017

18. The central document of the six is PAN_0049401 Attachment to Draft Cabinet Submission dated 29 November 2017 and is entitled Glebe Island Port – Commercial Evaluation. It is precisely what its description says. It was brought into existence, undoubtedly as a confidential document to assist the Cabinet commercially to evaluate the project using various models and assumptions. It contains commercially sensitive information not intended for disclosure to external parties. Disclosure would undermine the ability and confidence of the Cabinet to maintain the confidentiality of its internal dealings in relation to a significant potential commercial enterprise.

19. I have carefully examined the document and have concluded that any forensic value that might be wrung out of it is so limited that the public interest in preserving its confidentiality outweighs that interest in admitting the document into evidence.

20. The document may provide some insight as to how the Cabinet evaluated the commerciality of a potential project on a number of different scenarios, but its contents do not appear to have any cognisable relationship with any complaint or claim made by the plaintiff about something done by the defendant.

21. Indeed, I am not convinced that any of it would be admissible as relevant evidence in the proceeding. It can hardly be said that the document could be crucial let alone material for the proper determination of the proceeding or that this is an exceptional situation warranting disclosure of a document which otherwise has the cloak of privilege: New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 at [48] and [51] (Allsop P, Hodgson JA and Sackville AJA agreeing).

22. The remaining five documents are either drafts of the central one or confidential Cabinet material which refer to it. A fortiori, given their distance from the actual evaluation and its distance from anything material to the claim, their potential forensic value is even slighter: see Ku-ring-gai Council v West (2017) 95 NSWLR 1; [2017] NSWCA 54 at [76]-[78] (Basten JA, Macfarlan JA agreeing).

23. The plaintiff’s Notice of Motion filed 23 July 2025 is dismissed.

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