Plaintiff v Defendants

[2014] VSC 65

Supreme Court of Victoria|2014-03-04|Before: DERHAM As J

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Source facts

Court

Supreme Court of Victoria

Decision date

2014-03-04

Before

DERHAM As J

Source

Original judgment source is linked above.

Judgment (86 paragraphs)

[1]

The application is made in a group proceeding commenced under Part 4A of the Supreme Court Act 1986, in which Mrs Matthews, as representative plaintiff, brings claims against SPI, and others, for damages for personal injuries, property damage and economic loss suffered as a result of the Kilmore East/Kinglake bushfire on Black Saturday, 7 February 2009, in Kilmore East (the Kilmore East bushfire). The plaintiff alleges, among other things, that the bushfire was caused by breaches of duty by SPI in the management, inspection and engineering of the Valley Span, a conductor, or powerline, strung between poles 38 and 39 of the Single Wire Earth Return (SWER) line that is alleged to have failed and to have started the Kilmore East bushfire. The Kilmore East bushfire destroyed a number of towns, including Kinglake, destroying 1,242 properties and killing 119 people.
The trial of the proceeding commenced in the Supreme Court before J Forrest J on 4 March 2013 and anticipated to conclude in about June 2014.
In its defence and counterclaim, SPI makes proportionate liability and contribution claims against each of Utility Services Corporation Ltd (now called ACN 060 674 580 Pty Ltd), the Secretary to the Department of Sustainability and Environment (DSE), the State of Victoria and the Country Fire Authority (CFA). The DSE, State of Victoria and CFA are called the State Parties.
In short, the claims made by SPI (and adopted by the plaintiff) against the State parties are:

[11]

In his first affidavit Mr Spear gives evidence that:
- (a) He has inspected Document 1 and draft Document 3;
- (b) He has read the affidavits sworn by Mr Clancy and Mr King;
- (c) That, given the purpose for which these documents were created, he believes the final version of these documents (or the substantial content of them), were provided to a committee of Cabinet and if disclosed in this proceeding could reveal matters that were the subject of the committee's deliberations;
- (d) That he has caused searches of the former government's Cabinet documents and has located Cabinet submissions which, amongst other matters, contain the matters revealed in draft Document 3;
- (e) That the disputed documents relate to the Cabinet process. Cabinet decision-making, whereby all Ministers are collectively responsible for key government decisions (known as the principle of Cabinet solidarity), is at the heart of the Westminster system of government. Cabinet decision-making requires absolute confidentiality of Cabinet deliberations. Absolute confidentiality ensures that Ministers can freely discuss any matters that come before the Cabinet for consideration and make decisions in light of all the relevant information and advice available. Confidentiality also ensures that the principle of Cabinet solidarity can be maintained and the public service can provide advice and information to the Cabinet for its deliberations with complete candour - what is known as "frank and fearless" advice; and
- (f) If the Court were to order the production of the documents in full or redacted form, the necessary confidentiality of the Cabinet process would be breached by revealing matters the subject of deliberations of a sub-committee of Cabinet, or propose to be the subject of those deliberations. Accordingly, the proper functioning of government would be prejudiced as future Cabinet deliberations might be muted or impeded. This is because Cabinet might be conscious that its deliberations might not be kept confidential or it might direct that material of this nature not be prepared or the person preparing documents of a similar type may present the information in such a way as to minimise controversy in the event that the document is revealed. In consequence, Cabinet might not have access to full and frank advice and information, stultifying its deliberations.
In his supplementary affidavit, Mr Spear says that he has identified two documents (the ERC submissions), which are Cabinet submissions that he refers to in his first affidavit, that set out options for consideration by the ERC relating to the subject matter of draft Document 3. Each of the ERC submissions contain material extracted and derived from draft Document 3. He knows, due to his familiarity with submissions to Cabinet and its sub-committees, that each of the ERC submissions were given to the ERC for its consideration and deliberation.
The other affidavits are:
- (a) An affidavit of Ms Jackson, which relates to Document 2. This no longer the subject of dispute, as it cannot be found; and
- (b) An affidavit of Ms McGregor establishes that Document 1 was discovered in February 2013 by the State Parties and a claim for privilege made which has not previously been challenged. She also deposes that draft Document 3 was discovered in April 2013, subject to a claim for public interest immunity privilege, and that claim has not previously been challenged.

[14]

Section 130(4) sets out a non-exclusive list of circumstances in which the information or document will be taken to relate to "matters of state" for the purposes of s 130(1), including (relevantly) sub-section 130(4)(f), which states that information or a document will be taken to relate to matters of state where adducing the evidence would 'prejudice the proper functioning of the government of ... a State'.
Section 130(5) sets out a non-exhaustive list of the matters that the court may take into account for the purposes of s 130(1), as follows:
- (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/an accused] 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/an accused] - whether the direction is to be made subject to the condition that the prosecution be stayed.
It is clear from s 130(5) that the matters there set out do not limit the matters the Court may take into account for the purposes of s 130(1). As Dixon J noted in Murdesk Investments Pty Ltd v The Secretary to the Department of Business & Innovation ('Murdesk')[8] (at [23]), other relevant considerations in balancing competing interests of state can be drawn from the cases decided under the common law doctrine, as follows:[9]
- (a) Whether the objection to disclosure is a class claim or a content claim;
- (b) Whether a representative of government has supported nondisclosure of the information or document;
- (c) The subject matter of the information or document, for example, whether it relates to national security or, on the other hand, commercial matters;
- (d) Whether the information or document relates to Cabinet deliberations or lower levels of government;
- (e) Whether the information or document has contemporary importance or is only of historical interest; and
- (f) Whether the information or document was acquired on the basis that it would be kept confidential.
From the cases to which I was referred, including Lanyon Pty Ltd v Commonwealth ('Lanyon'),[10] Sankey v Whitlam & Ors ('Sankey'),[11] Commonwealth v Northern Land Council ('Northern Land Council'),[12] Murrumbidgee Ground-Water Preservation Association v Minister for Natural Resources ('Murrumbidgee'),[13] Murdesk Investments Pty Ltd v The Secretary to the Department of Business & Innovation,[14] Spencer v Commonwealth (No 3) ('Spencer No 3'),[15] Spencer v Commonwealth ('Spencer'),[16] and, most recently, the decision of Sifris J in Tatts Group Limited v State of Victoria (Tatts Group),[17] the following propositions are derived:

[15]

(a) The content and operation of s 130 of the Evidence Act is informed by the common law;[18]
- (b) The common law recognises a "rough, but acceptable" division of public interest immunity claims into "class" and "contents" claims;[19]
- (c) Documents can be immune from disclosure on the basis of their class because their disclosure would injure the public interest, irrespective of the actual contents of the documents;[20]
- (d) Documents that do not belong to such a class may still be immune from disclosure, on the basis that their contents, if disclosed, would injure the public interest;[21]
- (e) A claim in respect of a class of documents is, by its nature, general and that claim will normally be upheld if the class is one that is recognised as being, prima facie, subject to public interest immunity;[22]
- (f) It is well recognised that the proper working of government relies on ministers and other senior servants of the Crown being able to engage in policy development and decision-making on the basis that their deliberations are kept confidential and that the convention of collective responsibility for government decisions is maintained.[23] Documents that could disclose such deliberations fall within a class that attracts the public interest immunity;[24]
- (g) governmental processes directed to obtaining a Cabinet decision upon a matter of policy and Cabinet's decision upon that matter should not, in the public interest, be disclosed by the production of Cabinet papers, including papers which have been brought into existence within the governmental organisation for the purpose of preparing a submission to Cabinet. Such papers belong to a class of documents that are of a nature that ought not to be examined by the Court, except in very special circumstances;[25]
- (h) Cabinet documents extends to -
  - (i) Cabinet minutes or other records of Cabinet discussions and records of discussions between heads of departments;
  - (ii) papers prepared as submissions to Cabinet;
  - (iii) any documents which relate to the framing of government policy at a high level;[26]
- (i) immunity from disclosure is not automatically accorded to documents falling within such a class claim. There is no absolute immunity from production and inspection of Cabinet documents.[27] The court must still weigh the public interest in the proper functioning of government with the public interest in the proper administration of justice whereby all relevant documents are available to a party seeking to litigate a claim;[28]

[17]

(k) In order for the public interest in the administration of justice to arise in the balancing process, the documents must contain _'_material evidence'.[30] Relevance to the proceedings is of itself insufficient. The documents must have an important bearing upon the ultimate decision on the relevant questions;[31]
- (l) In civil cases it will only be where exceptional circumstances give rise to a significant likelihood that the public interest in the proper administration of justice outweighs the very high public interest in the confidentiality of documents recording Cabinet deliberations that it would be necessary or appropriate to order production of the documents to the Court;[32]
- (m) Where such exceptional circumstances exist, the appropriate course to be followed will ordinarily be for the judge personally to inspect the documents for the purpose of deciding whether the relevance of the material to the proceedings in which disclosure is sought is sufficient, even in those exceptional circumstances, to justify disclosure;[33]
- (n) The judge ought not to order the disclosure of the contents of documents recording Cabinet deliberations unless the judge is satisfied that the material is crucial to the proper determination of the relevant proceeding;[34]
- (o) Even though years may have passed since a relevant document was brought into existence, and government may have changed, it does not follow that the matters that are the subject of such documents have ceased to be current or controversial;[35]
- (p) Documents recording the actual deliberations of Cabinet are more likely to attract immunity than documents prepared outside Cabinet such as reports or submissions for the assistance of Cabinet.[36] They have 'a pre-eminent claim to confidentiality';[37]
- (q) Other documents including 'papers brought into existence for the purpose of preparing a submission to Cabinet' and 'documents and communications passing between a Minister and the head of his department relating to Cabinet proceedings and material prepared for Cabinet' are recognised classes prima facie entitled to protection on the grounds of public interest immunity; [38] and
- (r) Documents relating to a topic that is current or controversial will attract a high level of confidentiality.[39]

There is a three-step process involved in the consideration of a claim for public interest immunity:[40]
- (a) The first step is to decide whether there is a risk that production and inspection of the documents in issue would be injurious to the public interest;
- (b) The second step is to determine whether there is a public interest in a party having access to those documents because such access is in the interests of the fair administration of justice; and
- (c) The third step is to determine whether the public interest in the fair administration of justice outweighs the desirability that the information not be disclosed.
In this three-step process there is a balancing of two public interests, being the harm that may be caused by disclosure and the interest in ensuring that justice can be effectively administered.

[18]

In relation to Document 1, SPI contended that in resisting the production of the document the State Parties failed to take account of the fact that the call was limited to the form rather than the content of the document. SPI is only seeking the part of the document that comprises the structure, style and headings, with all of the content redacted.
SPI submitted that the conclusions set out in the affidavit of Mr Spear on the likely injury to the public interest arising from the disclosure of Document 1 are apparently based on his inspection of the whole document, including its content.[41] Mr Spear does not give any evidence that the disclosure of only the form of the document would lead to the same result;
There is thus no evidence on which the Court can be satisfied that there could be any prejudice to the proper functioning of the government of the State arising from the disclosure of the redacted document and therefore that the document 'relates to matters of state' for the purposes of s 130 of the Evidence Act. It follows that the State Parties' claim for public interest immunity must fail at the threshold.
SPI was critical of the evidence put in support of the claim for immunity in Mr Spear's first affidavit and maintained that it is insufficient to sustain the privilege for the reasons given by Sir Anthony Mason in Sankey.[42]
Even if the Court were to proceed to engage in the process of weighing the public interest associated with making Document 1 available in the proceeding against the public interest in preserving its secrecy, the prospect of any prejudice arising from the disclosure of only the headings and structure of the document would appear to be minute. This is particularly the case given that there is no evidence that the headings convey any confidential information.[43]
SPI seeks to deploy Document 1 in the proceeding to demonstrate that its form (as attached to the email of Mr Clancy) was the same as the published Budget Paper No 3 for 2008-2009 (exhibit DSE.1069.0002.1074)[44] so as to support the inference that the DSE and not Treasury proposed the planned burning target for 2008-2009. That is, the form of Document 1 will relevantly support an inference that the '2008-09 Budget Paper No 3 performance indicators' referred to in the covering email[45] represented the DSE's proposals as to the 'Major Outputs/Deliverables Performance Measures' referred to in that part of the Budget Paper No 3 appearing under the heading 'Department of Sustainability and Environment', subsequently published by the Department of Treasury and Finance. It is common ground that the DSE published Budget Paper No 3, and that there are different budget papers for different departments.
In argument Counsel for the Applicant, Mr Wallis, expanded on the ground of relevance, saying that the way Document 1 (in redacted form) is relevant is that there is a dispute about the extent to which the DSE was constrained by its budget and more fundamentally a dispute about how much planned burning it should have undertaken. SPI contends that the DSE determined the output quantity of burning that it wanted to undertake and submitted it to Treasury, which Treasury then adopted. It is SPI's position that the Department could have included a higher output quantity if it had thought it appropriate.
SPI's position is that merely by establishing that draft Document 3 (the attachment to email exhibited to Mr Clancy's affidavit) was in the same form as the ultimate budget paper that was published, the Court can draw the inference that the DSE was putting forward its proposed position as to the planned burning (called in the Budget Paper No 3 for 2008-2009 'Fuel reduction burning completed to protect key assets') and that SPI do not need to go to the actual hectares proposed to be burnt. The inference is that the proposal began with the DSE and the DSE put forward what it sought. Thus, what SPI wanted to establish through the redacted draft Document 1 was that what was put to Cabinet was in the same structure as the published Budget Paper No 3 for 2008-2009 (exhibit DSE.1069.0002.1074).
Counsel for SPI also submitted that the relevance is to be deduced from the fact that the document is discovered and is an attachment to a document the subject of cross-examination without objection. That is, it seems to me, he relied on what is sometimes called 'adjectival relevance'. That is, the very fact that the State Parties discovered Document 1, means that it must be relevant to (or relate to) issues between SPI and the State Parties, and were therefore important to SPI's case.
SPI submitted that several factors should lead to less weight being given to protection of the Documents from production for inspection. First, the different weight given to documents recording or revealing Cabinet deliberations, on the one hand, and any documents that might feed into submissions to Cabinet, on the other, meant that the disputed documents in this case were less worthy of protection. Secondly, deciding on how much planned burning to undertake in 2008 is not established by the evidence to be current or controversial, except to the extent to planned burning may still be current in relation to each and every fire season, as it plainly is.

[22]

In my opinion, Document 1, in its complete form, unredacted, properly falls within the class of Cabinet documents that are prima facie entitled to protection, on the grounds of public interest immunity.
That the evidence does not establish that a redacted form is a document of State is hardly surprising. It is not in a redacted form. The application is unusual in that it seeks that a document be produced in a form different from the form it is in. It is not even entirely clear from the description in the summons precisely what is sought to be redacted. It may be assumed that the redacted form is sought because SPI wish to avoid seeking production of a document that plainly is a document of State for the purposes of s 130 of the Evidence Act, production that would prima facie be prevented by the privilege. But its privilege under s 130 arises from its class not its contents. Taking out the substance of the document does not change the class it is in, although it may affect the balancing process if, devoid of content, the document is relevant and important to SPI's case in the proceeding.
Although Document 1 does not, in terms or explicitly, reveal Cabinet deliberations, it may do so inferentially, as Mr Spear reveals in his affidavits. The material that is before the Cabinet or a committee of the Cabinet is capable of revealing by way of inference the deliberations of Cabinet. It is for that reason that the well-established class of Cabinet documents include documents that are prepared for the purpose of submission to Cabinet. That is the class, or extended class, that is identified by Menzies J in Lanyon. The Full Federal Court in Spencer noted that Lanyon has never been overruled or called into question.[48]
The evidence of Mr Spear, despite its general nature, establishes good grounds for concluding that the disclosure of the document would affect the way government is conducted. It is not that the contents of the document if disclosed will be damaging to matters of State, but the functioning of the government process will be prejudiced as future Cabinet deliberations might be muted or impeded. His evidence in this regard, according to the authorities to which I have referred, must be given weight.
In any event, the general, perhaps formulaic, evidence of Mr Spear in support of the privilege is just the sort of evidence to be expected in a class claim of this kind. As Emmett J put it in _Spencer No 3, '_that is the nature of such a claim'.[49]
The proposition derived from Lanyon referred to by the Full Court in Spencer is not, of course, the end of the matter. It has been clearly laid down, in the Sankey and Northern Land Council cases, that the protection accorded to Cabinet documents is not absolute. The claim of public interest immunity must be weighed against the competing public interest of the proper administration of justice, which may be impaired by the denial to a court of access to relevant and otherwise admissible evidence.[50] But as the Full Court in Spencer noted, the joint judgment in the Northern Land Council case sounds (at 617) a specific warning against reducing the weighing of the two competing public interests to a mere assessment of the contents of a document, such as a Cabinet document, as not warranting protection.
In a case where a document falls into a class of document the disclosure of which would be injurious to the public interest regardless of the contents, a Court could conclude that 'disclosure would not really be detrimental to the public interest' only in circumstances where the competing public interest in the advancement of justice, outweighed the public interest in the preservation of confidentiality.
The matter to be emphasised is that, both in the case of documents recording the deliberations of Cabinet and in the case of other Cabinet documents, the question for the court is 'whether the relevance of the material to the proceedings in which disclosure is sought is sufficient... to justify disclosure'.[51] That balancing process must give proper weight to the assertion of a responsible representative of government that there is a public interest that would be placed in jeopardy by the production of the document. Moreover, it is not correct that evidence couched in broad terms of the damage arising from disclosure of documents of the kind in issue here could not justify this claim.[52]
Even though the document is not current, may be mundane (in the sense that it may not concern high policy), and may not concern a matter of controversy, it is in the extended class of a Cabinet document. It is prima facie entitled to the protection from disclosure under s 130.
Step one in the three-step approach is therefore satisfied.
I agree with the submissions of the State Parties that there can be no probative value from the production of a document that is devoid of content, nor any sensible inference of the kind suggested by SPI could be drawn by reason of being able to make that comparison between the structures of the two documents. I cannot see how the document can be used in the way SPI advanced.
I therefore conclude that Document 1 in a redacted form as sought by SPI, is not relevant to any issue in the proceeding. Even if I am wrong in that conclusion, and it has some relevance in a redacted form (which frankly I cannot presently see), it certainly does not appear to be centrally relevant or to be of such importance to the case of SPI as to warrant disclosure. As the principles referred to above show, relevance to the proceedings is of itself insufficient. Certainly adjectival relevance will not suffice. The documents must have an important bearing upon the ultimate decision on the relevant questions.[53] It may be, however, that to require the relevance to be 'crucial', as the State Parties contended, overstates the position with respect to Document 1. Step two in the three-step approach is therefore not satisfied.
Step three, the weighing of the factors affecting the balance (for example those referred to in sub-section 130(5)) does not even arise unless and until its relevance is established. Thus the matters of currency and controversy, high or low policy, Cabinet deliberations or material for submission to Cabinet, are not to be weighed, as it were, until the relevance of the document is established.

[28]

SPI contended that s 83(a) is simply not engaged because the resources the DSE in fact had for planned burning in the years 2001-2008 were not the resources it had "reasonably available" to it. SPI advanced the proposition that the DSE did not ask Treasury for enough funds to undertake sufficient planned burning and that the documents are expected to 'speak to' the total hectares that the DSE considered suitable to be burnt throughout the State.
Later, SPI's contentions as to the relevance of Document 3 changed. It was suggested by the State Parties that the DSE options paper to the Cabinet in relation to funding is not relevant to what it could have done if it had applied greater resources. Section 83 relates to the resources in fact available, not to resources that could have been available. In consequence, SPI abandoned its argument that the document is relevant to the defence of the State Parties under s 83 of the Wrongs Act.
SPI then advanced draft Document 3's relevance by reference to the duty that is called, in the latest SPI defence and counterclaim, the "DSE Duty",[60] and to the breach of that duty.[61] The DSE Duty is pleaded as a duty to ensure, or take reasonable care to ensure, that proper and sufficient planned burning for the prevention and suppression of fire was carried out in a timely and efficient manner to the Kilmore Fire Area Public Land (a defined term). The particulars of alleged breach of the duty include that it was unreasonable for the DSE not to have ensured that an average annual area of 4,800 hectares was burnt in the Kilmore Fire Area Public Land during the eight years from 1 July 2000 to 6 February 2009, that it was unreasonable to have burnt the areas in fact burnt, and other cognate particulars.
The State Parties deny the duty for a variety of reasons not necessary to be related here, and also deny any breach, including on the basis that there were constraints on planned burning because of cost and resources, among many other things.
SPI submitted that the factors that weighed in favour of disclosure of Document 3 were that it does not concern the deliberations of Cabinet and does not relate to high level policy, it is not current, being about 10 years old, it is not established by the evidence advanced by the State Parties that it is currently controversial, and in the evidence of Mr King there is some disclosure of the substance of the document.

[30]

In my opinion, draft document 3 properly falls within the class of Cabinet documents that are 'prima facie entitled to protection, on the grounds of public interest immunity'. I repeat what I said in relation to Document 1.
Draft Document 3 (as with Document 1) is properly characterised as a paper brought into existence for the purpose of preparing a submission to Cabinet, in this case the ERC, but that is still "Cabinet" for the purposes of the immunity. It belongs to a recognised class prima facie entitled to protection on the grounds of public interest immunity. The question in respect of both classes is 'whether the relevance of the material to the proceedings in which disclosure is sought is sufficient ... to justify disclosure'. [62]
That is the issue in this application. And that depends on the materiality or relevance, and importance, of the documents to the case of SPI against the State Parties.
I agree with the submission of the State Parties that the pleading of the DSE Duty and its breach by reason of the DSE having failed to cause the 4,800 hectares to be burnt in the relevant area during the eight years (as mentioned above), raise issues distinctly different from an allegation that the DSE had a duty to ensure that funds were sought at a level that might be required in order to fulfil or reach the stated target. Draft Document 3 concerns submissions to the ERC of options for planned burning: low, medium and high. On the face of the description of the nature of the document - as referred to by Mr King in his affidavit and in his evidence in cross-examination - it simply does not relate to the duty to ensure, or take reasonable care to ensure, that proper and sufficient planned burning for the prevention and suppression of fire was carried out in a timely and efficient manner in the Kilmore Fire Area Public Land. Nor does it relate to a breach of that duty. It relates to a proposal to Cabinet for it to select one of three proposed levels of planned burning.
It was not suggested that it was a breach of the duty to put an insufficient level of planned burning to Cabinet, or anything of that nature. Such a suggestion would not, as I read the pleadings, make the document relevant. If by some alchemy, a proposal to Cabinet is relevant to either the DSE Duty or its breach, it can hardly be centrally important.