Plaintiff v First Defendant Second Defendant

For the reasons which follow, I am of the opinion that none of these publications suggest or indicate any connection with the conduct of a business. It is not to the point in this respect that they may contain material which might be described generically as "commercial information". Moreover, in context, nothing flows from the nomenclature "Business Case". As the authorities indicate, it is substance in the context of relevant circumstances rather than form which is decisive.

58 The purpose of the publication of the Short Form Business Case to Infrastructure Australia is alleged by the State to be for the purpose of attracting Commonwealth Government funding. This is not admitted by the plaintiff, but in oral submissions the plaintiff clearly accepted that this was the position.[105] Nonetheless, it is, in my view, a reasonable inference that the purpose of that publication was consistent with the functions of Infrastructure Australia under s 5 of the Infrastructure Australia Act 2008 (Cth), which have been set out previously.[106] It is scarcely credible to suggest that the State would be providing information of this nature to a body with the functions of Infrastructure Australia for any other purpose. The State submits that the publication of the Short Form Business Case to Infrastructure Australia was "a purely intergovernmental communication". In my view, there is nothing in the material before the Court which suggests otherwise - particularly having regard to the nature of the parties to the communication and the provisions of the (Cth), to which reference has been made. The plaintiff's submission that the provisions of that legislation may also accommodate submissions by private entities does not detract from this position.