RP Data Limited (ACN 087 759 171) v Western Australian Land Information... [2010] FCA 922 | Case summary

consideration 5 The parties filed written submissions in relation to the public interest immunity question and counsel for the parties made brief oral submissions by way of elaboration of the written submissions. Following oral submissions, I acceded to an invitation made by counsel for the respondent that, for the purpose of determining the applicant's notice of motion, I should inspect the documents in question. I then required that the documents be provided to me on a confidential basis. 6 Once upon a time the rule by which some documents were considered to be immune from production in legal proceedings, because of the inherent public interest in those documents that suggested they be kept confidential to the holder of them, was called "Crown privilege". In 1978, the use of the expression was still common in Australia, though considered to be "inaccurate or misleading" (see Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, Mason J at 95). It was recognised as a misnomer since what is involved is not strictly a "privilege" either in the ordinary sense of the term or in the sense in which that term is used in the law of evidence, and the right to claim it was not exclusive to the Crown (or State) (see Hogg, Liability of the Crown (1971) pp 39 - 43; Hotop, Principles of Administrative Law (6th ed, 1985) p 492). By 1992, in Australia "Crown privilege" had given way to "public interest immunity" (see Commonwealth v Northern Land Council (1993) 176 CLR 604 (Northern Land Council)). 7 While the Evidence Act 1995 (Cth) by s 130 permits a Court to admit into evidence information and documents that relate to matters of state if the public interest in doing so outweighs the interest in preserving the secrecy or confidentiality in the information or documents, this provision does not apply in interlocutory proceedings such as these: Queanbeyan City Council v ACTEW Corporation Ltd [2008] FCA 1983; (2008) 253 ALR 121, [7] per Stone J. Accordingly, it is necessary to consider the issue on general law principles. 8 In Sankey v Whitlam, the High Court, putting the matter generally, ruled that proceedings of the Executive Council of the Commonwealth and documents relating thereto were not privileged from production unless their non‑disclosure was necessary for the protection of the public interest when weighed against the public interest in the proper administration of justice. The Court recognised that determining the public interest requires an assessment of two competing interests: the public interest whose protection demands non‑disclosure, and that of the proper administration of justice which may call for disclosure of relevant material: Gibbs ACJ at 38; Stephen J at 59; Mason J at 98. 9 Gibbs ACJ, at 39-40, recognised that some documents may be protected from disclosure because they fall into a class which ought not to be disclosed no matter what the documents individually contain. His Honour included cabinet minutes and minutes of discussions between heads of departments and papers brought into existence for the purpose of preparing a submission to cabinet, within this category. His Honour added that indeed any documents which relate to the framing of government policy at a high level might fall within such a class. His Honour spoke about the importance of complete freedom and candour in stating facts, tendering advice and exchanging views and opinions as important consideration underlying the immunity. 10 Stephen J, at 56, made reference to the reasons customarily given as justifying a claim to Crown privilege for classes of documents, being "the need to safeguard the proper functioning of the executive arm of government and of the public service". 11 Mason J, at 95, noted that in some instances it is said that disclosure of documents held by executive government would inhibit complete candour in discussion. His Honour noted that it has generally been assumed that important state documents relating to high level policy decisions, in particular Cabinet decisions and Cabinet papers, are immune from production. But his Honour then noted, at 95-96, that: It is now recognised that in considering an objection to production on the ground of Crown privilege the court must evaluate the respective public interests and determine whether on balance the public interest which calls for non-disclosure outweighs the public interest in the administration of justice that requires that the parties be given a fair trial on all the relevant and material evidence. 12 His Honour noted, at 96, that in determining this question the Court, though it will give weight to a Minister's opinion that documents should not be produced, is entitled to inspect the documents and form its own conclusions upon the question of whether the public interest will be better served by production or non-production. 13 Mason J, at 96, went on to note that cabinet decisions and cabinet papers do not stand outside the general rule that gives the Court this function. His Honour noted, however, it has been accepted that the public interest does not call for the non-disclosure of cabinet documents when their significance is purely historical. 14 Mason J, at 97, agreed with the proposition that the efficiency of government would be seriously compromised if cabinet decisions and papers were disclosed whilst they or the topics to which they relate are still current or controversial. His Honour based this view not so much on the probability of ill‑informed criticism with its inconvenient consequences, as upon the inherent difficulty of decision‑making if the decision‑making processes of cabinet and material on which they are based are at risk of premature publication. Cabinet proceedings have always been regarded as secret and confidential. 15 Mason J, at 98, referred to the report of the British Radcliffe Committee (Committee of Privy Councillors on Ministerial Memoirs) of January 1976. In that report, the proposition was endorsed that: Governmental representatives in all four countries [France, Sweden, Canada and the USA] took it for granted that a Government cannot function completely in the open, but must be able to preserve the confidential nature of its internal processes, especially at the highest levels of policy making. Mason J considered that this is the reason which underlies the public interest against production and disclosure of cabinet proceedings and of other high level policy deliberations. Accordingly, his Honour considered it is the element which has to be weighed in the balance with public interest in the administration of justice in determining whether cabinet meetings and high level deliberations should be disclosed. 16 Mason J, however, at 98, rejected the proposition that there cannot be disclosure of cabinet proceedings until such time as they are only of historical interest. 17 Mason J, at 99, also could see no reason to extend the umbrella of non‑disclosure or non‑production to all documents concerned with policy making in government departments. His Honour said to ensure that the protection given to cabinet proceedings is effective, documents and communications passing between a Minister and head of department relating to cabinet proceedings and material prepared for cabinet must be protected. Further, as important matters of policy are resolved below the level of cabinet, documents and communications relating thereto passing between Ministers and public servants will be the subject of protection as, for example, reports of inter-departmental and other government committees. But a distinction should be drawn between important matters of policy and those which are not. 18 Mason J, at 99, also acknowledged that as the range of issues which engage the attention of the executive government is infinite and as the manner in which those issues are considered varies from case to case, it is impossible to lay down hard and fast rules which will provide universal answers. Each case depends upon its own circumstances and it is only by a consideration of them that a correct balance will be reached. 19 In Northern Land Council, at 616, the High Court (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ) noted the tendency to classify claims for public interest immunity in relation to documents into "class" claims and "contents" claims. It considered the differentiation as "rough but accepted" and noted that it serves to differentiate those documents, the disclosure of which could be injurious to the public interest, whatever the contents, from those documents which ought not be disclosed because of a particular content. The Court confirmed, at 616, the particular protections accorded to cabinet deliberations as a class, although it was seemingly less firm as to the need to protect what it called "Cabinet documents" as a class. 20 The Court noted, at 617, that: In a case where a document fell 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 there was a competing public interest, such as the public interest in the advancement of justice, which outweighed the public interest in the preservation of confidentiality. 21 The Court, at 617, also noted that to inspect the contents of documents as a matter of course would be to disregard the basis of the immunity for a document falling within the class described, thus the Court suggested the apparent dilemma was to be resolved by recognising that the classification for a claim for immunity into "class" claims and "contents" claims is indeed rough and imprecise and, in many so-called "class" cases, a court may well find it necessary to consider a document, inspecting it if necessary, in order to determine whether it does in truth fall into a class which attracts immunity. The contents of the document may have a bearing on that question as may the topic with which it deals, particularly if it is no longer current or controversial. Their Honours however thought that where a document clearly falls within a class which attracts immunity, a different approach is called for. 22 In Commonwealth v Northern Land Council (1991) 30 FCR 1 (NLC Full Federal Court), the decision which led to the appeal in Northern Land Council, the Full Federal Court(Black CJ, Gummow and French JJ), following a detailed analysis of English, Canadian, New Zealand and Australian authorities on the topic, identified six factors that it considered should ultimately be regarded in any balancing exercise. While the High Court in Northern Land Council reversed the result, it seems not to have questioned this particular analysis. The Full Federal Court, at 30 FCR 38, listed the six factors as follows: 1. where the contents of the documents are relied upon, the interests affected by their disclosure, eg national security, relationships with foreign governments and unfair prejudice to other parties by disclosure of confidential information; where the impact of disclosure on the public interest is peculiarly within the knowledge of the Executive, its contentions will be given particular weight; 2. where the class of documents is invoked, the public interest which immunity for the class is said to protect eg political conventions and governmental processes; in this connection the importance of the convention of collective responsibility and the confidentiality required to support it, particularly in areas of current political debate, will be accorded a high degree of respect; 3. the extent to which the interests referred to have become attenuated by the passage of time or the occurrence of intervening events since the matters contained in the documents or the documents themselves came into existence; 4. the seriousness of the issues in relation to which production is sought eg innocence of a criminal charge or governmental misconduct bearing upon the case; 5. the likelihood that production of the documents will affect the outcome of the case; 6. the likelihood of injustice if the documents are not produced. 23 In North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1080, at [16] and in Betfair Pty Ltd v Racing New South Wales (No 7) [2009] FCA 1140; (2009) 181 FCR 66, at [34], the Federal Court of Australia (Wilcox J and Jagot J respectively) considered that, if the weighing exercise is to be conducted, there is a further factor to be regarded, namely, the protection of the public interest in ensuring that advice may be given to government without inhibition by reason of the risk of subsequent disclosure, which indicates that consideration must also be given to the nature and the subject matter of the documents. I respectfully agree. This view is also supported by the analysis that follows. 24 For my part, these various factors may be seen as a convenient summary of the more generalised considerations identified in Sankey v Whitlam as relevant to the public interest immunity question, particularly where the balancing of public interests is required. It is interesting to note that in many ways they reflect the factors listed in s 130(2) of the Evidence Act. 25 In NLC Full Federal Court, the Court also made observations in connection with the circumstances in which a judge might decide to inspect the documents in order to determine a public interest immunity question. These observations must, of course, be assessed in light of the comments, noted above, that the High Court made in this case on appeal. At 38, The Court concluded that inspection by the judge can be undertaken as an aid to the Court in assessing whether or not documents for which public interest immunity is claimed should be produced. The Court observed that this may enable the judge to identify and weigh, with greater confidence than might be possible in the absence of such inspection, the factors to which reference has been made. The decision whether or not to inspect itself involves a kind of anticipatory balancing exercise. It is certainly in the nature of the screening process but one well within the province of the courts. It is multi‑factorial and does not require the application of some rule of thumb which may distract the judicial mind from the demands of the particular case. As I have stated, these observations, suggesting a flexible approach to inspection must be read with the cautionary remarks of the High Court in mind. 26 As to whether or not a judge should inspect documents in question for the purpose of determining a public interest immunity question, judicial minds differed over the period leading up to Northern Land Council. A number of authorities were surveyed in NLC Full Federal Court, at 30 FCR 34 - 37. Generally speaking, the different views often reflect different types of proceedings, criminal and civil. In my respectful view, the observations ultimately made by the Full Federal Court and the High Court in Northern Land Council are particularly apposite, especially in a case such as the present that is a civil proceeding in which in the course of giving discovery one party (the respondent) has identified documents that should be discovered and the only issue is whether those documents attract a public interest immunity on a class basis. 27 A question arises in passing in this case as to the extent to which the public interest immunity applies in respect of documents held by some body that appears to have public duties or public functions. As noted above, there are some suggestions to be drawn from cases like Sankey v Whitlam and Northern Land Council that the public interest immunity will only apply at the highest levels of government. It needs to be borne in mind, as emphasised by Mason J in Sankey v Whitlam, that the immunity exists to protect the public interest in relation to important matters of policy, not in relation to those which lack this characteristic. 28 In my view, the notion of "executive government" to which these authorities relate is to be understood very broadly. The public interest immunity is just that, a "public interest" immunity, not a "Crown" or State immunity. Conway v Rimmer [1968] AC 910 was a case in which the House of Lords significantly influenced the thinking of courts throughout the common law world on this issue. Lord Reid, at 952, emphasised that the courts have and are entitled to exercise a power and duty to hold a balance between "the public interest" as expressed by a Minister, to withhold certain documents or other evidence, and the public interest in ensuring the proper administration of justice. D v National Society for the Prevention of Cruelty to Children [1978] AC 171 suggests that public interest immunity may apply to prevent the disclosure of documents held by a person or body not part of the executive government but having an important and well‑established public role in civil society. 29 An important point seems to be that if information has been generated in order to facilitate the conduct of governmental business or otherwise has some significant "public" characteristic to it, in the sense that it owes its existence to some public duty requiring its production and then its retention on a confidential basis, there may be a public interest in preserving that information from disclosure. In this regard, in Jacobsen v Rogers (1994) 182 CLR 572 at 590, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ, in a joint judgment, observed: It may be necessary for the proper functioning of the public service to withhold documents where failure to do so would impair confidence in its assurances [footnote reference to Sankey v Whitlam at 39]. Confidential information of a business character required to be given by a statute which prohibits the disclosure of the information and protects it from production to a court would appear to present a particularly strong case for immunity. 30 In Royal Women's Hospital v Medical Practitioners Board (Vic) [2006] VSCA 85;(2006) 15 VR 22 (Royal Women's Hospital), the hospital's claim that a patient's medical records kept at the hospital were protected against production on a search warrant on the ground of public interest immunity were rejected. Warren CJ, at [35], held the documents were not governmental in character. Maxwell P, at [55], held the documents were wholly unrelated to decision‑making "at the highest levels of government". Charles JA, at [116], held that public interest immunity was restricted to what: must be kept secret for the protection of government at the highest levels and sensitive areas of executive responsibility, governmental function in this context being defined to include courts and bodies exercising statutory duties and functions in circumstances analogous to the police informer immunity. He concluded that the holding of the medical records by a hospital was not a governmental function and therefore did not attract immunity. 31 What seems to be at issue in policy terms in these judgments is the extent to which the underlying rule should expand or limit the circumstances in which official or public documents might potentially remain secret or confidential in the face of prevailing demands for more open government (see also: R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681). 32 In The Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34; (2008) 36 WAR 83 (The Australian Statistician), the Court of Appeal of the Supreme Court of Western Australia (Steytler P, McLure JA and Newnes AJA) considered that the expression of opinion of Maxwell P, restricting a public interest immunity to decision‑making "at the highest levels of government", was inconsistent with authority and referred to Jacobsen v Rogers in this regard. The Court's "preliminary view", at [34] was that the statement of principle of Charles JA was consistent with the case law and a correct general statement of the scope of the immunity. 33 In The Australian Statistician the Court of Appeal acknowledged the public functions of the Australian Statistician and the Australian Bureau of Statistics (ABS) under The Australian Bureau of Statistics Act 1975 (Cth). In issue were confidential reports of interviews and surveys between survey respondents and ABS, and ABS working documents, as well as special collection items which were sourced information for a new statistical measure produced by the ABS. The trial judge had held that the new index did not relate to decision‑making at the highest levels of government and was not governmental in character and so did not attract a public interest immunity. The Court of Appeal, however, held, at [42], the public interest to be protected was the confidentiality of the identities of the survey respondents, and that restricted disclosure for the purposes of litigation had the significant potential to seriously damage the proper workings of the appellant and the ABS in the collection of reliable raw data in a timely manner for all price indexes. The Court considered this would impair the efficient functioning of the Australian Government in such things as the economy and had sufficient connection with governmental functions. 34 In the case before me, it is not necessary to define the parameters of the doctrine of public interest immunity and whether or not it can protect from disclosure documents not held by a person or body strictly governmental in character, or a person or body strictly speaking not exercising "governmental functions". For present purposes, I would respectfully adopt, as did the Western Australian Court of Appeal in The Australian Statistician, the formula suggested by Charles JA in Royal Women's Hospital to the effect that public interest immunity applies to protect the interests of government at the highest levels and in sensitive areas of executive responsibility. The question now falling for determination is whether the Ministerial briefing notes of the respondent identified in its discovery satisfy this classification. 35 Counsel for the respondent, in essence, contends that the respondent's Ministerial briefing notes are a class of governmental documents that should presumptively attract the application of the public interest immunity against production, even in litigation, where they are on the face of it discoverable as relevant to matters in issue. Counsel recognises however that the Court may inspect the documents to engage in a balancing exercise as to whether a public interest in disclosure should prevail. 36 To weight the primary "class" immunity claim it is relevant to know more about what the respondent is and what it does. The respondent is not a government department in the usual sense but is a body corporate established by s 5 of the LIA Act. It is an agent of the Crown in right of the government of Western Australia and, subject to liability for duties, taxes and other imposts, has the status, immunities and privileges of the State: LIA Act s 6. It is then what might be termed a public sector organisation. 37 The respondent was created to act as the body through which the State performs certain functions relating to land information on a basis not involving a profit, and to generate for the State a fair commercial return from providing other goods and services relating to land information: LIA Act, s 8. 38 The respondent's main responsibilities include to provide, administer, and provide access to information in, the land information systems the laws of the State require: LIA Act, s 9(1) 39 The respondent is also responsible for, either at the request of the responsible Minister or as the respondent considers appropriate, developing policy and advising the Minister or any public body on matters relating to the respondent's land information functions: LIA Act, s 9(8)(a). 40 In performing its functions under the LIA Act, the respondent must act in a cost effective manner and on prudent commercial principles: LIA Act, s 10(1). 41 While the respondent is established as a separate body corporate, and is endowed with the general powers listed in s 12(1) and (2) of the LIA Act, there are statutory limitations on its powers, such as the requirement to obtain the Minister's approval under s 13 before entering certain transactions. 42 The respondent is governed by a board of management constituted under Pt 4 Div 1 of the LIAAct. The respondent's Chief Executive Officer, who is appointed under the Public Sector Management Act 1994 (WA) (LIA Act, s 3), is a member of the board ex officio, and the remaining board members are appointed by the Minister: LIA Act, s 22(1). Subject to control by the board of management, the Chief Executive Officer is responsible for, and has the powers needed to administer, the day to day operations of the respondent: LIA Act, s 44(2). The respondent may also employ and manage its own staff, and make use of the services of any officer or employee in the State Public Service, or make use of any of the facilities of the State Public Service: LIA Act, s 45 and s 46. 43 The respondent is accountable to the Minister under the provisions of Pt 5 Div 1 of the LIA Act. 44 The respondent's board of management and the Minister may consult together in relation to the respondent's operations, but must do so before the respondent enters upon a course of action which, in the board's opinion, amounts to a major initiative or is likely to be of significant public interest: LIA Act, s 63(2). 45 The respondent must keep the Minister reasonably informed of its operations, financial performance and financial position:LIA Act, s 64(a). It must also give the Minister reports and information that the Minister requires for the making of informed assessments of the respondent's operations, financial performance, and financial position: LIA Act, s 64(b). 46 The Minister may give written directions to the respondent with respect to the performance of its functions under the LIA Act or any other Act, either generally or in relation to a particular matter, and the respondent must give effect to such a direction: LIA Act, s 65 and s 66. 47 The Minister is entitled to have any information in the possession of the Authority, and to have, or make and retain copies of, any document possessed by the Authority: LIA Act, s 67(1). Where any document is provided by the respondent to the Minister, and that document will be, or might be, made public, the respondent may require the Minister to delete from that document any matter of a commercially sensitive nature: LIA Act, s 68(2). 48 It is also worth noting that each financial year the respondent's board of management must prepare, and submit to the Minister for agreement, a draft strategic development plan: LIA Act, s 47(1). (I have already noted above that, in this case, the parties have agreed that the applicant may inspect the strategic development plan on certain confidentiality undertakings, subject to an order of the Court to that effect.) 49 In these circumstances, without needing to inspect the documents confidentially produced to me, I find it very difficult to see why, as a general proposition, Ministerial briefing notes from the respondent authority to its responsible Minister should automatically attract public interest immunity status. As a class, documents of this description do not seem obviously to fall within the description of high level policy documents to which the authorities would accord that status. There is, for example, no particular indication that the briefing notes are intended to underpin any cabinet deliberations involving the responsible Minister. Nor do they, in my view, as a class on the face of it, have some potential to undermine the workings of government (for example in the manner found by the Court of Appeal in The Australian Statisticianin relation to a contents immunity claim. To simply describe a document as a "Ministerial briefing note" really is to say very little about its significance to government. As a class, it is not to be equated, say, with a Cabinet minute. 50 Looking at the documents as described in the list of discoverable documents of the respondent, leaving aside document 318 is the respondent's strategic development plan for the period 2009/10 to 2013/14, documents 319 and 320 are confidential briefing notes concerning the three year licensing agreement the Department of Land Administration entered into with the applicant in or about August 1999. Document 324 is a draft of a confidential briefing note to the Minister concerning the proposed fee structure for the respondent's then existing broker clients that accessed and on-sold the respondent's data. Document 325 is a draft of a confidential briefing note from the then acting chief executive of the respondent to the Minister concerning implementation by the respondent concerning the implementation by the respondent of new arrangements for providing property information through third party information providers. It is not necessary to provide a description of all the other documents save to say that none of them, in my view, fits the description of the documents that are intended to underpin or support the Minister's cabinet deliberations or other high level governmental functions. Whilst the documents are no doubt important to the performance of the respondent's functions in the interests of the State, in my view, they do not as a class automatically attract public interest immunity. As the more detailed description of these documents discloses, they have a fairly mundane tenor. There is nothing to suggest that Ministerial briefing notes ordinarily go to matters of high policy, and I am unwilling on the information before me effectively to infer that they do. 51 That Ministerial briefing notes as a class should not attract a public interest immunity is unlikely, in my view, to inhibit candour in communications by public servants, or a body like the respondent, with a Minister. If anything that such briefing notes do not attract the immunity as a class heightens the public expectation that public servants and organisations like the respondent will give accurate and reliable information to Ministers that is well able to withstand the light of day if required to be produced at a later date to a court or in the course of legal proceedings such as these. This of course is not to say that a particular briefing note may not attract immunity by reason of its contents. 52 However, given that the class claim has been pressed by the respondent I consider I should regard the actual documents confidentially produced to me in the event I have misunderstood or underestimated their character and importance. Having inspected the documents in a cursory way, I am confirmed in my view that they do not constitute a class of documents that automatically attracts a public interest immunity from disclosure. They really are mundane run of the mill advices. Some of the information is historical, although some appear to have some currency. I cannot say from my cursory inspection of the documents that the likelihood that production of the documents will affect the outcome of the case is a high one. Similarly, it cannot be said that there is any great likelihood of injustice if the documents are not produced, although it seems to me there is no reason why the applicant should not see them. 53 In these circumstances, I am not satisfied that the documents fall within a class that automatically attracts a public interest immunity from production in these proceedings. Even if they did, having regard to the content of the documents I do not consider that the interests of state reflected in them are at such a high level that the public interest requires them to be protected by non‑disclosure. Rather, I consider that disclosure may possibly assist the administration of justice. In the event, the documents having been discovered as possibly relevant to matters in issue, I see no reason why the applicant should not have access to them. 54 In these circumstances I would make orders asked for in the notice of motion, subject to a confidentiality regime being put in place along the lines of that which has already been agreed between the parties in relation to the production and inspection of the strategic plan. This will enable the legal representatives of the parties to inspect the documents in question. I would also exempt the agreed legally privileged documents from production. In light of the consent of the parties I would also order access to the strategic development plan (document 318). There seems to be nothing about this document that should lead to it remaining confidential to the respondent. Obviously, on the respondent's own assessment, it relates to a matter in issue.

costs - And the question of waiver of immunity 55 There should also, in these circumstances, be an order that the respondent pay the applicant's costs. While the respondent suggests that it is not for it to waive any public interest immunity that inheres in the documents, in my view the respondent has resisted the production of documents in the end for no sufficient reason. I do not consider the respondent must await a contested Court order before allowing inspection in litigation such as this. The respondent's position appears to be that it is not in a position to "waive" the immunity. That may be so, where it exists. If on advice a body such as the respondent forms the view that the immunity may not be claimed, or that a claim is perhaps tenuous it is open to it not to make a public interest immunity objection. Certainly, it is not the case that, just because there may be an argument, the Court must be approached for a ruling as to whether or not public interest immunity exists. Such an approach would be conducive of delay and unnecessary expense in litigation. In this, such an approach would run counter to the overarching purpose of civil practice and procedure in this court, as expressed in s 37M (especially 1(b) and 2(b)-(e)) of the Federal Court of Australia Act 1976 (Cth). There is, in my view, no obligation on a party such as the respondent to take the objection in appropriate cases. See Sankey v Whitlam, for example, Stephen J at 51-52. 56 The respondent in raising the waiver point appears to rely on an observation made in the speech of Lord Fraser of Tullybelton in Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 436, where, in discussing the circumstances in which a judge should inspect documents in order to decide whether or not a public interest immunity is made out, his Lordship observed: The test is intended to be fairly strict. It ought to be so in any case where a valid claim for public interest immunity has been made. Public interest immunity is not a privilege which may be waived by the Crown or by any other party. In Reg. v Lewes Justices, Ex parte Secretary of State for the Home Department [1973] AC 388, 400 Lord Reid said: There is no question of any privilege in the ordinary sense of the word. The real question is whether the public interest requires that the letter shall not be produced and whether that public interest is so strong as to override the ordinary right and interest of a litigant that he shall be able to lay before a court of justice all relevant evidence. 57 I also note that Lord Scarman in Air Canada, at 446, also states that the Crown, when it puts forward a public interest immunity objection, "is not claiming a privilege but discharging a duty". His Lordship added that it is not for the Crown but for the Court to determine whether the document should be produced. 58 I note that in The Australian Statistician v Leighton Contractors Pty Ltd the Court of Appeal at [31], in recording the objection that had been made on the grounds of public interest immunity, simply stated that the parties "accepted that public interest immunity cannot be waived" and referred to the Air Canada decision at 436. The Court made no other observation on the proposition. 59 The observations of their Lordships in Air Canada, to my mind, are, with respect, self evident propositions, but only where the objection is taken. In my view, it is ordinarily for a party who considers there may be a public interest immunity obligation to production to decide in respect of what documents, if any, it claims the immunity. I also recognise that in some serious cases, even the Court may raise the issue: see s130(2) Evidence Act. For quite pragmatic reasons (among others) a party may choose not to press such an objection. 60 In this regard, I note that in Hogg & Monaghan, Liability of the Crown (3rd ed, 2000) the learned authors state at page 83, [5.2], that public interest immunity exists for the protection of the public interest and may not be waived by any individual. They state that indeed it is a rule on which the judge should, if necessary, insist, even though no objection is taken at all. But ,the authors go on (in footnote 9), to make the following observation concerning the inability of an individual to waive the immunity: The conventional wisdom is that the immunity cannot be waived even by a Minister. In theory, once a Minister has concluded that disclosure of information would be harmful to the public interest, the Minister is under a duty to claim public interest immunity. In practice, assessment of harm to the public interest is a matter of discretion, especially if the Minister also pays attention to the significance of the information for the litigation, as Ministers in the United Kingdom are now instructed, both by the courts and by government, to do: R v Chief Constable: Ex parte Wiley [1995] 1 AC 274, 298 per Lord Woolf… The immunity certainly cannot be waived by any official below the level of Minister, let alone a private party, although there is a case that decides that, where the public interest is simply the need for candour in the provision of confidential information … then the privilege can be waived if both the provider and the recipient agree: Campbell v Tameside Metro BC [1982] Q8 1065, 1073 (CA) (school board's psychiatric report on a student). 61 In my view, these observations make eminent sense and emphasise the fact that there is a practical discretion in a body such as the respondent, certainly with its Minister's approval, to "waive" an arguable public interest immunity. 62 In these circumstances, the applicant having been put to the trouble and expense of obtaining the orders I propose to make, it should also have its costs of the notice of motion in the usual way.

RP Data Limited (ACN 087 759 171) v Western Australian Land Information Authority

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