Police Federation of Australia v Nixon

REASONS FOR RULING ON WHETHER RESPONDENTS' DISCOVERED DOCUMENTS SHOULD BE PRODUCED TO APPLICANTS 1 On 1 April 2010 I published orders disposing of two motions on notice. One of those motions by the applicants sought production for inspection of certain documents which had been discovered by the second respondent. In the course of my reasons for those orders [Police Federation of Australia v Nixon [2010] FCA 315] ("the earlier reasons"), I concluded that s 22 of the Whistleblowers Protection Act 2001 (Vic) ("the W P Act") protects from disclosure information brought into existence or gathered in the course of making, or receiving a complaint of serious misconduct by a member of the Victoria Police Force. At [13]-[14] of the earlier reasons, I observed; 13 It will be apparent that the interpretation of the W P Act which I favour has the consequence that some of the Schedule 1 Part 2 documents are of such a character, as evidenced simply by their description, that s 22 precludes their production. That applies self-obviously to the written complaint numbered 54 and the witness statements numbered 73 in Appendix A to these reasons. (I assume the witness statements to have been compiled in the course of investigating the original complaint). However, the remaining Schedule 1 Part 2 documents do not necessarily appear from their description to be confined to information obtained or received in the course of, or as a result of, a protected disclosure or the investigation of a disclosed matter within the meaning of s 22(1) of the W P Act. In that sense, assuming that each such document would otherwise be relevant and production of it necessary as provided by O 15 r 15 of the Rules of this Court, it may be appropriate for the Court to consider each of the remaining Schedule 1 Part 2 documents for the purpose of deciding whether, in whole or in part, the document is not subject to production because it contains information of the kind described in s 22(1) of the W P Act. 14 That course is frequently taken where some sensitivity attaches to the documents in question as happened with the documents considered by Wilcox J in Jackson v Wells (1985) 5 FCR 296; see esp. at 308. The circumstances of the present case were said by Mr Parry SC, who appeared with Mr Richard Dalton of Counsel for the respondents, to be of the kind indicated by Wilcox J. Mr Parry went on to note that: In the circumstances of the case, the apparent breadth of s.22 of the WP Act and the sensitivity of information regarding the identity of complainants and witnesses, the respondents' counsel and solicitors have not had access to the documents. Because some of the Schedule 1 Part 2 documents are also subject to a claim of public interest immunity, I shall return, after examining that ground of exemption from production, to consider how each of the Schedule 1 Part 2 documents should be treated. 2 I then concluded at [26]-[27] in respect of the applicants' motion; 26 In my view, it is appropriate to take, in this case, the approach suggested by Wilcox J in Jackson. I shall therefore direct that each of the documents enumerated in Appendix A to these reasons other than those numbered 54 and 74 be delivered to my Associate in a sealed envelope or other container to allow me to examine each document to determine whether it is precluded from production by application of s 22(1) of the W P Act or by operation of the doctrine of public interest immunity. Where it is feasible in respect of a particular document, I shall edit or redact it to preserve the confidentiality of the part or parts which it would be inimical to the public interest to disclose or which contain information which is the subject of a protected disclosure or is connected with the investigation of a disclosed matter within the meaning of s 22(1) of the W P Act. 27 A similar course commends itself in respect of the documents enumerated in Appendix B to these reasons, which comprises Parts 2 and 3 of Schedule 1 to the second respondent's list of documents. Most of those documents, if immune from production at all, will, it seems from their description, derive that character from the doctrine of public interest immunity. In respect of some, particularly those in Part 3, the Court may decline to order production on the ground that it is not necessary in the sense explained at [34]-[38] below. I shall, accordingly, examine each of the documents listed in Appendix B to determine whether the second respondent should be ordered to produce it in its original, or in some edited or redacted, form. Those documents ought also, therefore, be delivered to my Associate in the same fashion as the Appendix A documents. 3 I have now examined copies of each of the documents enumerated in Appendix A to the earlier reasons (other than those numbered 54 and 73). I have indicated in Schedules A and B to these reasons which of those documents should be produced for inspection on behalf of the applicants, which should be produced subject to being edited or redacted in the way indicated on the copy supplied to me and which need not be produced. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Ruling on whether respondents' discovered documents should be produced to applicants herein, of the Honourable Justice Ryan.