The Plaintiffs in these proceedings seek declarations, orders and damages in respect of various reports prepared by the Independent Commission Against Corruption. The proceedings are at the stage where there are disputes about a proposed amendment to the Statement of Claim. I heard a Motion by the Plaintiffs seeking to amend the Statement of Claim. That Motion involved arguments by all of the Defendants, except for the newly added Eleventh Defendant, ICAC itself, about the proposed form of the pleading. At the conclusion of the argument, the Plaintiffs accepted that amendments needed to be made to the proposed draft. A further draft of the Statement of Claim is to be served by 20 November 2015.
On 27 August 2015 the Plaintiffs served a Notice to Produce for inspection seeking the following document:
Complete and unredacted copy of the Application for Search Warrant (other than Part 5 Search Warrant) / Record of Application made by the Applicant, Mr Grant Lockley on 22 November 2011 for a search warrant to enter the premises known as Locaway Pty Limited, Suite 501 - 501A Henry Lawson Business Centre, Roseby Street, Drummoyne, Sydney in the State of New South Wales.
The search warrant itself provides a significant basis for the whole of the pleading. Many of the complaints made by the Plaintiffs have their origin in the execution of the search warrant, the documents that were seized and what happened to those documents and material later relied upon by ICAC to make the findings in the reports issued by ICAC.
On 7 September 2015 the Third to Tenth Defendants filed a Notice of Motion to set aside the Notice to Produce. The Notice of Motion sought the orders on two bases. The first was that it lacked a legitimate forensic purpose. The second was that the material sought to be produced is the subject of a public interest immunity claim and/or would require a person to produce material to the Court in contravention of s 111 of the Independent Commission Against Corruption Act 1988 (NSW).
The First Defendant was the ICAC Commissioner at the time of the events complained of. The Second Defendant was Senior Counsel assisting ICAC at the time. The Third to Ninth Defendants are various employees of ICAC who were involved in the matter from the time of the obtaining and execution of the search warrant through to the time when the hearings were held that led to the publication of the reports identified. The Tenth Defendant is the State of New South Wales.
In the Notice of Motion filed by the Plaintiffs on 6 November 2015 where they sought (inter alia) to file and serve an Amended Statement of Claim, they also sought orders for the production of the same document sought in the Notice to Produce. They did this by reference an open affidavit of Sharon Leigh Loder sworn 11 September 2015. Ms Loder is the Executive Director, Investigation Division, at ICAC and is also the Third Defendant in the proceedings.
In her open affidavit she made reference to the Notice to Produce and said that she objected to production of a complete and unredacted version of the search warrant application on the basis that paragraph 2(b)(i) contains information relating to matters of State within the meaning of s 130 of the Evidence Act 1995 (NSW) and that public interest in preserving the secrecy of that information outweighed the public interest (if any) in producing the information. She exhibited to her affidavit and placed in an envelope marked "Confidential Exhibit SLL - 1" a true unredacted copy of the search warrant application. She objected to producing the entirety of paragraph 2(b)(i) of that document but had no objection to producing the redacted version which did not include paragraph 2(b)(i).
The significance of what is contained in the unredacted document is said to be emphasised by what is proposed to be included in the Amended Statement of Claim. Relevant paragraphs in the form of that Statement of Claim about which argument was had include paragraphs 12B and 12C, 132A and 133A.
Originally the whole of the application for a search warrant was made the subject of a certificate issued pursuant to cl 11 Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW) by Registrar Lister of the Local Court at Newtown. Locaway Pty Ltd sought a review of the Registrar's decision. That review came before Williams LCM in the Local Court at Newtown on 19 May 2015. Counsel for ICAC said this:
Clause 11 of the Law Enforcement (Powers and Responsibilities) Regulation 2005 provides that such certificates can issue in whole or in part, that is, in respect of all or part of a document, and there are only two grounds. One is that the document or part of a document would reveal the identity of a person and a person's safety would be jeopardised thereby, and the second ground is prejudice to investigations.
The ICAC today would invoke both of those. We have an affidavit including a confidential affidavit to attest to all of the criteria. In the nature of these things, my friend doesn't get to see that affidavit. I have given him an assurance and I put on the record that that affidavit specifically address (sic) that a person's safety would be in peril by the disclosure of one subparagraph of the document.
I emphasise that it is not suggested that my learned friend's client or anyone associated with that company would be posing the danger. It comes otherwise.
Counsel for ICAC also told the Magistrate that Locaway's lawyer had accepted that assurance. The result was that the parties agreed that the review should succeed and that the application should be made available except in respect of paragraph 2(b)(i) of the document.
Thereafter, the Plaintiffs obtained a copy of the redacted document but sought a copy of the unredacted document.
[3]
Legislation
Section 111 of the Independent Commission Against Corruption Act relevantly provides:
111 Secrecy
(1) This section applies to:
(a) a person who is or was an officer of the Commission, and
(b) a person who is or was an Australian legal practitioner appointed to assist the Commission or who is or was a person who assists, or performs services for or on behalf of, such an Australian legal practitioner in the exercise of the Australian legal practitioner's functions as counsel to the Commission, and
(c) a person who conducts a review under section 104D, but only in relation to the person's functions under that section, and
(d) a person or body referred to in section 14 (3), 16 (4) or 53 (6), and
(e) a person who is or was an officer of the Inspector.
…
(3) A person to whom this section applies shall not be required:
(a) to produce in any court any document or other thing that has come into the person's possession, custody or control by reason of, or in the course of, the exercise of the person's functions under this Act, or
(b) to divulge or communicate to any court any matter or thing that has come to the person's notice in the exercise of the person's functions under this Act,
except for the purposes of a prosecution or disciplinary proceedings instituted as a result of an investigation conducted by the Commission in the exercise of its functions.
…
(6) In this section:
court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
produce includes permit access to.
Mr Newlinds of Senior Counsel for the Plaintiffs accepted that, as things stood at the hearing of the Motions on 6 November 2015, he could not overcome the refusal of production of the unredacted application for the search warrant by reason of s 111. The Plaintiffs were to send a letter of request to the Local Court for the production of the Local Court file in an endeavour to obtain a copy of the unredacted application. Section 111 of the ICAC Act would not be relevant as far as accessing the unredacted application in that file.
However, the Third to Fifth and Seventh to Tenth Defendants resisted production of the document on public interest immunity grounds. If that immunity applied it would apply to the copy of the document produced by the Local Court as well as to documents in the possession of ICAC or its officers. I shall refer to these Defendants as the Resisting Defendants. The Resisting Defendants relied on three affidavits of Sharon Leigh Loder being the open affidavit sworn 11 September 2015 earlier referred to, a confidential affidavit of the same deponent sworn 11 September 2015 and a further confidential affidavit of that deponent sworn 5 November 2015.
Section 131A of the Evidence Act provides:
131A Application of Part to preliminary proceedings of courts
(1) If:
(a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and
(b) the person objects to giving that information or providing that document,
the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.
(2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following:
(a) a summons or subpoena to produce documents or give evidence,
(b) pre-trial discovery,
(c) non-party discovery,
(d) interrogatories,
(e) a notice to produce,
(f) a request to produce a document under Division 1 of Part 4.6.
Section 130 of the Evidence Act relevantly provides:
130 Exclusion of evidence of matters of state
(1) 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 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).
(3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.
(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:
(a) prejudice the security, defence or international relations of Australia, or
(b) damage relations between the Commonwealth and a State or between 2 or more States, or
(c) prejudice the prevention, investigation or prosecution of an offence, or
(d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law, or
(e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, or
(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,
(b) if the proceeding is a criminal proceeding - whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor,
(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of 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,
(f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant -whether the direction is to be made subject to the condition that the prosecution be stayed.
(6) A reference in this section to a State includes a reference to a Territory.
[4]
Submissions
The Plaintiffs drew attention to what was said by Basten JA in Attorney General (NSW) v Lipton [2012] NSWCCA 156; 224 A Crim R 177 at [27] - [34], particularly in relation to the balancing exercise involved between the need to preserve secrecy or confidentiality and the public interest in the production of the documents. The Plaintiffs submitted that ICAC had accepted that the concern about disclosure was not a concern in relation to the Plaintiffs. In those circumstances it would be open to the Court to make orders for the disclosure of the information to the Plaintiffs' lawyers on an appropriate confidentiality regime, following what Wilcox J said in Kanthal Australia Pty Limited v The Minister For Industry, Technology And Commerce (1987) 14 FCR 90 at 95.
The Resisting Defendants pointed out the limitation on their ability to go into great detail about the substance of the claim without trespassing on the claim itself. They made what they called generic submissions on public interest immunity. In that regard they pointed to what might be considered the relevant matters listed in s 130(4) of the Evidence Act being (c), (e) and (f). The Resisting Defendants submitted that, in any event, the categories of public interest that may be protected by the immunity are not closed.
They submitted that it might be necessary for the Court considering the claim of public interest immunity to read confidential material put forward by the party relying on the immunity without disclosing that information to the party seeking the document.
[5]
Consideration
In Alister v The Queen (1984) 154 CLR 404 Gibbs CJ said (at 412):
Sankey v. Whitlam establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation. But the anterior question arises - should the court look at the documents to assist it in answering these questions?
I accept the Resisting Defendants' submission that this effectively establishes a three stage process as follows: first, determining whether the evidence sought to be obtained is material; secondly, establishing that there is a sound basis for the claim of immunity; and third, the balancing exercise. Although Alister predates the enactment of the Evidence Act there is nothing to suggest that that three stage process is not equally applicable now. Indeed, what is said in Lipton at [39] supports that view.
The pleading in the existing Statement of Claim and what is likely to be included in the Amended Statement of Claim (based on the form of the document the subject of argument) satisfies me that the evidence sought to be obtained is or may be material to the way the Plaintiffs put their case. Without making more than general comments about the pleading in the Statement of Claim, and although the Defendants may well join issue with the materiality of the information, I accept that the evidence sought to be obtained is or might be material, although not essential for the claims the Plaintiffs make.
As to whether there is a sound basis for the claim of immunity, I note what was said by Sully J (with whom Spigelman CJ and Adams J agreed) in Attorney General v Kaddour & Turkmani [2001] NSWCCA 456 at [20] that the terms of s 130(3) meant that:
His Honour was entitled to have full regard to what was said in the various Confidential Statements; and to take the contents of those Statements fully into account without disclosing in any way or to anybody the contents of the Confidential Statements.
Similar statements have been made in DPP v Smith (1996) 86 A Crim R 308 at 310 and NCA v Gould (1989) 90 ALR 489 at 497.
I have examined the confidential material and I am entirely satisfied that there is a sound basis for the claim of immunity.
In Lipton, Basten JA said:
[37] … The importance of private informers to law enforcement has not diminished over the decades and, arguably, only the availability of reasonably watertight assurances, well founded in the law, can ensure the continued flow of such information. On the other hand, that principle cannot become a protection for unchallengeable and potentially malicious complaints which may lead to a wrongful conviction. Hence the exception where the court is satisfied that disclosure is necessary to avoid a wrongful conviction. However, clear applications of established principle do not demonstrate the absence of other forms of exception: they merely demonstrate the high value placed on the protection of informers.
[38] In practice, informers fall into different categories, as do the threats attendant upon disclosure. Each case must depend, to a certain extent, upon its own facts, although the importance of maintaining trust in the ability of a police force to offer protection to informers is a consideration of general application.
[39] Whatever may be the principle applicable under the general law, the test to be applied under s 130 is clearly a balancing exercise which requires the court to be satisfied that, relevant to the present circumstances, the public interest in preserving secrecy or confidentiality in relation to a category of documents outweighs the public interest in their production. In undertaking that balancing exercise, the court is required to take into account those factors identified in sub-s (5) as are relevant in the circumstances of the case. That exercise is not to be constrained by unexpressed rules derived from the general law, although the same result may be expected on either approach.
It is clear from an examination of the unredacted application for the search warrant that the first basis put forward to the magistrate on 19 May 2015 to have the part of the application redacted was entirely justified. In the application of the balancing exercise in this case, the requirement for the material to remain confidential significantly outweighs the public interest in the production of that part of the document.
Nor do I think it would be appropriate to put in place a confidentiality regime so that the information could be made available to either or both of the Plaintiffs and their lawyers. In some cases that approach may be appropriate where the concerns relating to confidentiality involve commercial interests or were otherwise commercially sensitive in the way discussed in Kanthal Australia. Further, where the documents sought to be produced are "critical to the case" sought to be made, that may be a powerful factor in favour of disclosure: Khantal at 92.
Different considerations seem to me to apply where the physical safety of a person is concerned. With the best will in the world, the more people who know of a matter the more chance there is for the disclosure of some aspect of the information which can then be linked to other known information that might ultimately result in the safety of the person sought to be protected being compromised.
In Hilton v Wells (1985) 15 A Crim R 418; 5 FCR 296 Wilcox J said (A Crim R at 429 ):
Without reflecting in any way upon the integrity of any counsel or solicitor, difficulties are likely to arise where counsel appearing in, and advising their clients in respect of, protracted and complex proceedings acquire information which they are not free to use or to pass on to their clients. During the heat of battle an unwitting disclosure may occur. Frank and full advice becomes impossible. I am aware of cases in which, for reasons such as these, experienced counsel have declined to receive information which they are not free to share with their clients. It seems to me merely common sense to conclude that the fewer people who have access to confidential information the less is the risk of unauthorized disclosure.
I accept that it is an important consideration that justice not be denied to a party because of an inability to obtain access to documents: Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No. 2) [1974] AC 405; Sankey v Whitlam (1978) 142 CLR 1; Kanthal at 95; and s 130(5)(a) Evidence Act.
An examination of the existing Statement of Claim and the information contained in the proposed statement of claim that I considered at the hearing of the Motions does not lead me to the view that the information contained in the redacted part of the application is of such significance to the Plaintiffs that they will be denied justice if they are not able to access the material. As I understand the pleading in the existing Statement of Claim and the additional material in the proposed Amended Statement of Claim, the information, whilst material, is not critical to the Plaintiffs' case.
Accordingly, I would uphold prayer 2(a) in the Third to Tenth Defendants' Notice of Motion filed 7 September 2015 and I would refuse prayers 8, 9 and 10 in the Plaintiffs' Notice of Motion filed 6 November 2015.
[6]
Conclusion
I make the following orders:
1. (1) The claim for public interest immunity in relation to the redacted part of the application for search warrant dated 22 November 2011 referred to as Confidential Exhibit SLL-1 in the Open Affidavit of Sharon Leigh Loder sworn 11 September 2015 is upheld;
2. (2) Set aside the Plaintiffs' Notice to Produce dated 27 August 2015;
3. (3) Refuse prayers 8 and 9 in the Plaintiffs' Notice of Motion filed 6 November 2015.
[7]
Amendments
04 December 2015 - Publication restriction lifted.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 04 December 2015
Parties
Applicant/Plaintiff:
Obeid
Respondent/Defendant:
Ipp
Legislation Cited (3)
Law Enforcement (Powers and Responsibilities) Regulation 2005(NSW)