Ryan v State of Victoria [2015] VSCA 353

EVIDENCE - Public interest immunity - Whether duty of legal practitioners to use the information only for the proper conduct of the proceeding would be sufficient protection - Harman v Secretary of State for the Home Office [1983] 1 AC 280, Seymour v Price [1998] FCA 1224, considered - Appeal dismissed.

Introduction and summary ..............................................................................

Protest at Maribyrnong Immigration Detention Centre ..........................

The pleadings ..................................................................................

The documents in dispute ......................................................................................

The statutory scheme ..............................................................................................

The judge's reasons ..................................................................................................

The grounds of appeal .............................................................................................

Notice of contention ................................................................................................

Public interest immunity ...................................................................

(1) Public interest immunity at common law ...............................

(2) Relationship between common law and statutory immunity .........

(3) Public interest immunity claims relating to police methodology ...

(4) Recent Victorian jurisprudence on public interest immunity .......

Analysis ........................................................................................

(1) Ground 1 - would disclosure prejudice the government of the State (s 130(4)(f))?..........................................................

(2) Grounds 2 and 3 - relevance and importance to proceeding (s 130(5)(a) and 130(5)(c)) ..............................................

(3) Ground 4 and 5 - likely effect of access and restrictions on release (s 130(5)(d)) .......................................................................

(4) Notice of contention - does common law public interest immunity apply? ........................................................................

Conclusion on the appeal ..................................................................

1 This appeal is from a ruling of a judge of the County Court who excluded evidence of police strategies and methodologies on the grounds that: (1) the evidence was not relevant; and (2) the evidence attracted public interest immunity.[1] The judge upheld a claim by the State of Victoria ('the State') to public interest immunity pursuant to s 130 of the Evidence Act 2008 ('the Act') which permits the exclusion of evidence of information relating to matters of state where the public interest in preserving confidentiality outweighs the public interest in admitting that information into evidence.[2] The ruling was made in civil proceedings brought by Mark Ryan ('Ryan'), the appellant, against the State (the respondent to the appeal) and Leading Senior Constable Turner ('Turner')[3] for the intentional torts of assault and battery. Ryan is seeking damages for injuries he alleges he sustained by conduct of Turner with respect to her control of her horse, Troophorse Upwey, when Ryan was participating in a demonstration outside the Maribyrnong Immigration Detention Centre ('the MIDC').

2 For the reasons that follow I would dismiss the appeal.

3 There was no error in the findings by the judge that the documents in dispute[4] are not relevant to the claims of assault and battery brought by Ryan or, if relevant, are of 'nominal or no importance'[5] to the proceeding. The claim for public interest immunity should be upheld.

Protest at Maribyrnong Immigration Detention Centre

4 The demonstration outside MIDC took place at around 2:00 pm on 29 May 2011. The demonstration was attended by Ryan and Alexander Forbes ('Forbes').[6] Officers of Victoria Police also attended on foot as did members of the Mounted Branch of the Victoria Police, including Turner.

5 After speeches had been delivered, the protesters left the MIDC and proceeded north-east along Hampstead Road towards Highpoint Shopping Centre. A number of the protesters began to move into the south-western bound lanes of Hampstead Road. The police responded by attempting to confine the protesters to the north-eastern bound lanes.

6 A protester was arrested for allegedly assaulting a police horse.[7] Upon seeing the arrest, some of the protesters, including Ryan and Forbes, stopped marching, stood still and formed a chain, linking arms. A row of police formed in front of the protesters and demanded that the protesters, including Ryan and Forbes, move backward. Police forced protesters back and Ryan fell to the ground.

7 The subsequent incident ('the incident'), the facts of which are in dispute, forms the subject of the claim in tort. Ryan and Forbes allege that Turner caused her horse, Troophorse Upwey, to:

(a) advance upon protesters, including Ryan who was lying on the ground;

(c) fall to the ground and roll onto Ryan using a rehearsed, controlled manoeuvre.

8 In the alternative, Ryan and Forbes allege that Turner failed to prevent Troophorse Upwey from engaging in the conduct referred to in [7] above.

9 Neither Ryan nor Forbes was arrested or charged with any offence arising from the demonstration.

10 The allegations relied upon in the statement of claim as forming the basis of the torts alleged against Ryan are set out in [29], [36], [37], [38], and [39]. They read as follows:

29. The horses were used to:

a. Push protesters; and/or

b. Clear protesters from an area; and/or

c. Control protesters; and/or

d. Create a barrier; and/or

e. Intimidate protesters; and/or

1. Confine protesters to the north-east bound lanes of Hampstead Road.

1. By reason of police forcing protesters back, Ryan was pushed to his arm and/or upper body, causing him to fall to the ground.
2. Mounted police, including the first defendant [Turner], who was riding on Troophorse Upwey, made an advance on the protesters.

38. The first defendant [Turner] caused Troophorse Upwey to:

1. Advance upon protesters, including Ryan who was lying on the ground;

1. Fall to the ground and roll on to Ryan using a rehearsed, controlled maneuver.[[8]]

1. Alternatively, the first defendant [Turner] failed to prevent Troophorse Upwey from:
   1. Advancing upon protesters, including Ryan who was lying on the ground;

b. Treading on Forbes' foot;

c. Falling to the ground and rolling on to Ryan.

11 The allegation of assault with respect to Ryan is as follows:

1. at paragraphs 29 and 36 to 39 above, Ryan was placed in apprehension of a physical interference with his body;

1. Further and in the alternative, by reason of the matters set out in paragraphs 37 to 39 above, the first defendant [Turner] exceeded her authority to exercise force and in so doing was acting outside the scope of her authority. The acts described at paragraphs 3628 [sic] above were therefore unlawful and constituted an assault upon the plaintiffs [Ryan and Forbes].

12 Ryan's allegation of battery in [50] of the statement of claim was also based upon the alleged conduct described in [36] to [39] of that pleading:

Further, and in the alternative, each of the acts:

1. described in paragraphs 36 to 39 above, constituted an unlawful battery of Ryan in that:

i. each act directly caused physical contact with Ryan;

ii. in each case, the contact was unpermitted and unwelcome;

iii. each act was intentional; and

iv. in each case Ryan did not consent to the physical contact.

13 The allegation against the State[9] is made on the basis of s 123 of the Police Regulation Act 1958 which provided:[10]

(1) A member of the force or a police recruit is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith in the course of his or her duty as a member of the force or police recruit.

(2) Any liability resulting from an act or omission that, but for subsection (1), would attach to a member of the force or police recruit, attaches instead to the State.

14 The allegation is made in [52] of the statement of claim which reads:

If s 123(1) of the Police Regulation Act 1958 (Vic) applies to any act or omission of [Turner] (which is not admitted), liability for such an act or omission attaches to the State pursuant to s 123(2) of the Police Regulation Act 1958 (Vic).

15 Ryan claims that as a result of the alleged assault and battery, he suffered injury, loss and damage for which he seeks damages. The injuries include pain and suffering, a fractured right clavicle which required him to wear a sling for at least two weeks and bruising to the chest and shoulder.

16 In her defence, Turner alleges that she and other mounted police moved between protesters to convey a person who was then in custody. She does not admit that Troophorse Upwey trod on the foot of Forbes or rolled onto Ryan. She says that Troophorse Upwey stumbled and fell partially onto her side before regaining her footing after one unsuccessful attempt to stand upright. She relies on the defence that any force used by her was authorised by s 462A of the Crimes Act 1958 and/or the common law in that it was proportionate and necessary to prevent the commission of the offences of resisting or intentionally obstructing police in the lawful execution of their duty and/or was reasonable to prevent breaches of the peace.

17 Turner alleges that Ryan and Forbes 'each voluntarily assumed the risk for their conduct by placing themselves in the path of Troophorse Upwey when [she] was carrying out her lawful duties'.

18 Turner also alleges that she was acting in good faith. If established, the effect of 123(2) of the Police Regulation Act is that all liability would attach to the State because under s 123(1) a member of Victoria Police was not personally liable for anything necessarily or reasonably done or omitted to be done in good faith in the course of his or her duty as a member of the police force.

19 Turner's defence includes allegations about the conduct of the protesters, namely:

27 ... [S]everal of the protesters:

(a) failed, refused and/or neglected to abide the lawful directions of the police ...

(b) physically resisted and pushed against police so as to effect and demonstrate that failure, refusal and neglect; and

(c) behaved in a way which created an unreasonable:

(1) risk of damage or injury to themselves, motorists and police;

(2) interference with the north-east bound carriage-ways of Hampstead Rd; and thereby

(d) behaved in a manner which constituted a breach of the peace.

20 The State admits that it would be liable for anything done by Turner in good faith but otherwise denies [52] of the statement of claim:

Save that it admits that pursuant to section 123 of the Police Regulation Act 1958 (Vic) it is liable for anything that was necessarily and reasonably done by [Turner] in good faith in the course of her duty as a member of the Victoria Police it otherwise denies the allegations in paragraph 52.

21 Belinda Bales ('Bales'), a Senior Sergeant with the Victoria Police, swore an affidavit of documents as part of the process of pre-trial discovery. She claimed public interest immunity over various redacted parts of a number of documents in pt 1 of sch 1 of her affidavit of documents and claimed public interest immunity over all documents listed in pt 2 of sch 1 of her affidavit.

22 At a hearing before a County Court judge, the State maintained its claim of public interest immunity over various redacted parts of the documents described in pt 2 of sch 1 of Bales' affidavit of documents.

23 Ryan sought to challenge the claim for public interest immunity over the redacted portions of the following documents, namely:

(b) Mounted Branch's Crowd Control of Movements Manual;

(c) PowerPoint slide presentations on various Mounted Branch operational tactics; and

(d) PowerPoint slide presentations summarising police tactics and strategies to be utilised during the protest at MIDC on 29 May 2011.[11]

24 On the appeal, Ryan, at the request of the Court, provided a revised list of the documents referred to in Bales' affidavit of documents, amended to exclude entirely irrelevant documents, to which he now seeks access in un-redacted form. These consist in the following sections of the documents numbered 2 to 11 in pt 2 of sch 1 of Bales' affidavit of documents as follows:

Powerpoint Slides titled 'Movements Where the Foot Police Go into the Crowd First'

Powerpoint Slides titled 'Barrier - Crowd Vs Crowd'

Powerpoint Slides titled 'Barrier - Police Vs Crowd'

Powerpoint Slides titled 'Passive Full Pass - Encountering Resistance'

25 For the purposes of the appeal, the redacted portions of the documents in this revised list are treated as identifying the live documents that remain in dispute. They are referred to as the 'documents in dispute'.

26 Section 130 of the Act is the foundation of the statutory test for a claim of public interest immunity. Section 130(1) relevantly provides for a balancing exercise between two competing public interests; the public interest in the confidentiality of 'matters of state' and the public interest in admitting the information or the document into evidence:

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.

27 Subsection (2) of s 130 confers a power on a court to exclude information or documents from being adduced into evidence, on its own initiative or in response to an application. Subsection (3) allows for the court to inform itself as it thinks fit:

(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.

28 Subsection (4) of s 130 sets out a list of circumstances in which information or a document is deemed to relate to 'matters of state' without limiting other circumstances that may also so relate. It provides:

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.

29 In the County Court the State principally relied on s 130(4)(f) to identify the basis on which the documents in dispute relate to 'matters of state'; namely, that permitting them to be inspected or adducing them in evidence would prejudice the functioning of the government of Victoria. Ryan argued that the information at issue does not on proper analysis fall within the scope of a matter of state in s 130(4) at all. He argued that para (f) of s 130(4) was inapplicable because the proper functioning of 'government' could not include the functions of the police in this case and that, although the most likely candidate was para (c), the documents in dispute do not contain information that would prejudice the prevention, investigation or prosecution of an offence and therefore do not relate to matters of state under s 130(4)(c).

30 Subsection (5) of s 130 enumerates a non-exhaustive list of matters which the court must take into account when undertaking the balancing exercise in sub-s (1):

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 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 an accused - whether the direction is to be made subject to the condition that the prosecution be stayed.

31 Section 131A of the Act extends the operation of s 130 from the admission of evidence to various forms of compulsory disclosure, including, relevantly, pre-trial discovery as occurred here:

(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, 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;

(g) a search warrant.

32 The judge expressed the view that s 130(1) 'codifies the common-law doctrine of public interest immunity'.[12] Ryan accepts on the appeal that this is not correct.[13] The State agrees that s 130 does not codify the common law[14] but submits that s 130 is intended substantially to reflect the common law doctrine of public interest immunity and that the content and operation of s 130 is informed by the common law. It claims that nothing turns on this. The scope of s 130 is discussed below.[15]

33 The judge noted that the onus is on the party who claims immunity to establish why, in the pre-trial context of discovery, non-disclosure should be ordered. She acknowledged the nature of the balancing exercise saying:

In determining a claim for immunity, the Court must first identify the precise public interest that arises and whether there is a risk that disclosure would be injurious to that interest. The Court must first establish that there is a genuine public interest claim. The Court must then balance this against the public interest in the administration of justice and any relevant competing public interest, to see which should prevail. The administration of justice may be impaired by the denial of relevant and otherwise admissible evidence. This requires an examination of the relevance of the documents for the determination of the litigation. Further, the Court must identify whether public interest in the judicial process requires disclosure.[16]

34 The judge inspected the documents in dispute.[17] She accepted the submissions of the State that it was para (f) of s 130(4) that was the relevant section for analysis, namely, that the disclosure of the documents in dispute would prejudice the functioning of government, adopting a broad interpretation of 'government'. In doing so, she rejected Ryan's submission that para (c) of s 130(4) was the relevant section. She said:

I do not accept the plaintiffs' submissions that s 130(4)(c) is the relevant section for analysis. More specifically, the redacted portion of the documents relate to wider aspects of Victoria Police functions as an agent of the government.

I take the view that s 130(4)(f) is the relevant section for analysis. I am satisfied that the word 'government' in s 130(4)(f) is no impediment to applying the subsection in this case. Odgers says that s 130(4)(f) is likely to relate to 'government' broadly defined. The Victoria Police is part of government, required for its proper functioning. The Victoria Police force is required to maintain law and order in the State of Victoria. As an agent of government it performs broad functions, including crowd control, which is a proper function of the government. Having examined the documents, I am satisfied that the redacted portion of the documents deal with the proper functioning of government via the Victoria Police.[18]

35 Having identified precisely the matter of state to which the documents in dispute related, her Honour went on to engage in the balancing exercise prescribed under s 130(1). She accepted that there was a public interest in preserving the confidentiality and secrecy of the documents in dispute as their release could prejudice 'the proper functioning of the Victoria Police Mounted Branch'.[19] This was so because their disclosure could impair the efficacy of future Mounted Branch operations and enable persons potentially to neutralise the tactics of the Mounted Branch of Victoria Police. She said:

The present case deals with police manuals and procedures in maintaining public order, the function of which has been delegated by the government. It could be interpreted that the documents in question if released have the potential to prejudice the proper functioning of government in maintaining public order. Specifically, the disclosure of Police training and tactical information would prejudice the effectiveness of Mounted Branch operations in future, and would equip persons with information that enables them to participate and potentially neutralise Mounted Branch police tactics.[20]

36 Her Honour also considered the countervailing public interest supporting disclosure, namely, in general terms, the public interest in the administration of justice. More specifically, she considered Ryan's submission that the information in the documents in dispute relate to the question of 'whether Turner was complying with methods contained in official Police records'.[21] This was argued to be relevant to two issues in the proceeding, namely:

(a) Whether Turner acted recklessly and without lawful excuse, which could lead to an increased damages award;

(b) The respective liability between Turner and the State of Victoria.[22]

37 In determining the strength of the countervailing public interest, the judge considered the evidence by reference to the factors identified in sub-s (5) of s 130. She considered first the importance of the information, or the document, to the proceeding: s 130(5)(a). She relied upon the observation of Derham AsJ in Matthews v SPI Electricity Pty Ltd [No 11][23] that relevance to the proceedings is not sufficient:

[i]n order for the public interest in the administration of justice to arise in the balancing process, the documents must contain 'material evidence'. Relevance to the proceedings is of itself insufficient. The documents must have an important bearing upon the ultimate decision on the relevant questions ...[24]

38 In order to determine whether the documents were relevant to the allegations made by Ryan, or amounted to material evidence, the judge considered the central allegations in the statement of claim.

39 She referred to the affidavit evidence of Sergeant Astill who denied that there was any training in the manoeuvre alleged:

I confirm that in response to paragraph 38(c) of the plaintiff's Statement of Claim[[25]] ... there is no training of members or horses at the Victorian Police Mounted Branch to fall to the ground and roll onto protesters deliberately as part of 'a rehearsed controlled maneuver '[sic] as alleged.[26]

40 The judge concluded, after her inspection of the documents in dispute, that there were no documents that supported the allegation of the rehearsed manoeuvre and thus that the documents were not relevant to that issue. She said:

My inspection of the documents in issue confirmed that the redacted portions do not support Ryan's allegation with respect to a rehearsed, controlled manoeuvre. There were no documents or information of this nature. This is consistent with Sergeant Astill's evidence. Accordingly, the documents and information are not at all relevant to this aspect of Ryan's claim.[27]

41 She considered the alternative allegation in [39] of the statement of claim, namely, that Turner failed to prevent Troophorse Upwey from treading on Forbes' foot and rolling onto Ryan.[28] In so far as this was argued to be relevant to an allegation of recklessness, the judge observed that the allegation of recklessness did not appear in the pleadings. In any event, the documents in dispute were not probative of Turner or the State's actions:

Counsel for the plaintiffs submitted that the redacted portion of the documents might be adduced in support of the argument that Turner's actions were reckless, and that there was no lawful excuse for Turner breaking away from other riders and entering the crowd of protesters on her own. If Turner was not riding in accordance with official Police methods, this would strengthen the plaintiffs' argument. The difficulty with this submission is that the plaintiffs have not pleaded this in the Statement of Claim. Rather, the Statement of Claim refers to the Mounted Branch (a plurality) advancing on the protesters. Furthermore, the redacted portions of the documents are not probative of the actions taken by either Defendant, as stated in the particulars of the plaintiffs' pleadings. They do not assist the Court to resolve the issues in dispute surrounding the alleged failure to prevent 'treading' and 'rolling' by Troophorse Upwey. The redacted portions do not explain or contradict this claim in any substantive way. They are not relevant or important in this aspect of the proceedings.[29]

42 The judge also held that the PowerPoint slide presentations summarising police tactics and strategies to be used at the MIDC on 28 May 2011 did not address the issues in the proceeding and were not relevant to the proceeding. She concluded that the documents in dispute 'are of nominal, or no importance in the proceeding'.[30]

43 She further considered the nature of Ryan's cause of action and the subject matter of the proceeding, pursuant to s 130(5)(c), noting that the claims were for the intentional torts of assault and battery. She observed that if Ryan and Forbes established that force was applied to their persons, or the threat of force, the burden of proof would shift to Turner to establish that the force or threat of force was reasonable. She was satisfied that the documents in dispute 'were not probative of the cause of action'[31] and that they 'do not assist in establishing the fact of whether force was used'.[32] She remarked that the case did not involve claims in negligence. She rejected Ryan's submission that the documents in dispute are relevant to Turner's defence that she was carrying out her 'lawful duties'[33] because they address only broad circumstances and do not address the individual circumstances of the case:

Counsel for the defendant submitted that the nature of Turner's defence rests on what was reasonably necessary to maintain public order in this particular case. Having examined the redacted portion of the documents, I am not satisfied they are probative of Turner's defence. The redacted portions of the documents address very broad sets of circumstances. They shed no real light on the events and actions that form the subject matter of this proceeding. Further, Turner does not rely on the redacted portion of the documents in her defence. They are not important to this aspect of the proceedings.[34]

44 The judge also rejected the submission that the documents in dispute were relevant to the question of the respective liabilities between Turner and the State.

45 With respect to the factor identified in s 130(5)(d),[35] the judge accepted that disclosure of information that publicly 'reveals Police techniques in an operational context may hamper future police operations'.[36] Reiterating the views she expressed when identifying the public interest in preserving the confidentiality of the relevant matters of state, she considered that disclosure would prejudice police operations and would equip people with information to neutralise the tactics of the Mounted Branch of Victoria Police.[37] Sergeant Astill had given affidavit evidence to that effect.

46 Furthermore, the judge rejected the view that the Court could impose restrictions on the publication of the documents in dispute, for example, by releasing them to counsel alone. In doing so she relied on a decision of the Full Court of the Federal Court, Seymour v Price,[38] which she said 'determined that if documents are confidential and sensitive then they should not be released to counsel'.[39]

47 Finally, she considered whether the substance of the information had already been published under s 130(5)(e). She did not regard the fact that Victoria Police performs its crowd control functions in public as tantamount to the prior publication of the documents in dispute; nor did she consider that video clips published in the media amounted to such publication. She said that the 'anecdotal information in media clips and public demonstrations is wholly inferior to internal Police documents being disclosed to the public'.[40]

48 Ultimately, the judge gave two separate grounds for upholding the State's claim for public interest immunity: (1) that she was 'not persuaded that the redacted portion of the documents are important or relevant in the proceedings';[41] and (2) that, even if the documents in dispute were relevant to the proceeding, on balance the public interest in preserving confidentiality outweighed the public interest in disclosure. She said:

In any event, the public interest in maintaining the confidentiality of Mounted Branch training and tactics so as not to prejudice the effectiveness of Mounted Branch operations and the proper functioning of the State government, outweighs the plaintiff's interest in accessing the redacted portion of the documents.[42]

49 Ryan relied upon five grounds of appeal:[43]

(1) The judge erred in law and in fact in holding that the adducing into evidence of (or granting Ryan access to) the documents in dispute related to 'matters of state' because it would prejudice the proper functioning of the government of the Commonwealth or a State contrary to s 130(4)(f) of the Act.[44]

(2) The judge erred in law and in fact in holding that the documents in dispute were not of relevance to the proceeding and/or were not important pursuant to s 130(5)(a) of the Act.[45]

(3) The judge erred in law and in fact in holding that the documents in dispute were not probative of and/or important to the nature of the cause of action and the defences in the proceedings pursuant to s 130(5)(c) of the Act. [46]

(4) The judge erred in law by failing to take into account the 'likely effect' of giving Ryan access to the documents in dispute, as required by s 130(5)(d).

(5) The judge erred in law and in fact by giving no consideration to Ryan's submissions that the harm contended for by the State, if the material was to be adduced as evidence, depended on there being an 'at large' disclosure of the material, which would not in fact occur due to the substantive principle of law that the material would be subject to the implied undertaking that was confirmed in Harman v Secretary of State for the Home Office[47] that it could not be used for anything other than the proper conduct of the action.

50 In Victoria, the question for determination on an appeal from a ruling on public interest immunity is 'whether the decision was erroneous, not whether it fell within the "limits of a sound discretionary judgment"'.[48] Appellate review is not limited to an application of the principles in House v The King.[49]

51 The State also filed a notice of contention to the effect that, if necessary, the judgment below should be affirmed on the ground that the documents in dispute found to be unimportant or irrelevant to the proceedings, and otherwise not required to be produced by operation of s 130 of the Act, were also subject to common law principles of public interest immunity and so, for that further reason, were not required to be produced.

52 Before examining each of the grounds of appeal, it is useful to recall the key principles governing public interest immunity at common law. This is important because the common law informs the statutory immunity. If the common law and statutory immunity were to be considered separately, the principles to be applied would not be meaningfully different. It is also useful to consider the context of police methodology as well as a recent Victorian authority on public interest immunity.

53 The common law doctrine of public interest immunity protects from compulsory disclosure documents or information where disclosure would be injurious to the public interest. Assessing whether a claim of public interest immunity ought to be upheld requires the court to weigh the public interest that would be harmed by the production of the evidence against the frustration or impairment of the administration of justice if the evidence was withheld.

54 The foundational common law statement of principle on public interest immunity is found in Sankey v Whitlam.[50] As Gibbs ACJ said:

The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer, as follows:

'There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.'

It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies.[51]

55 A party asserting a claim of public interest immunity to protect a document from disclosure is required to identify with precision the 'character of the particular information in issue and the nature of the particular litigation' in which the public interest issue arises.[52] The party seeking access to the document must demonstrate a legitimate forensic purpose in disclosure.[53]

56 It is well accepted that the categories of public interest are not closed.[54] Categories of public interest include claims made in relation to national security, Cabinet deliberations, high-level advice to government, intra-government communications or negotiations, police informers, other types of informers, police investigations, and the activities of intelligence officers. Under the common law, a 'rough but accepted' distinction is drawn between 'class claims' and 'contents claims'; that is, between public interest immunity claims the subject of which is a document falling within a specific 'class' irrespective of its content, for example a Cabinet document, and a document attracting the immunity because of the sensitive nature of its 'content'.[55]

57 In undertaking the balancing exercise, the court will generally have regard to a number of considerations. These include whether non-disclosure would impede the accused's right to a fair trial,[56] the evidentiary value and importance of the documents to the issues,[57] whether ordering disclosure would cause sources of information to 'dry up', whether preserving candour would facilitate the public function in issue, and whether the material is already in the public domain[58] or has current sensitivity.[59] The court is also to accord weight to an assertion by an authorised representative of government that the public interest would be at risk in the event of disclosure.[60]

(2) Relationship between common law and statutory immunity

58 There is considerable support in the authorities for the view that the principles governing public interest immunity under s 130 of the Act reflect those applicable at common law; what differences exist are of no practical significance. The authorities are principally derived from the jurisdictions of New South Wales or the Commonwealth. Section 130 of the Act is comparable in its terms to s 130 of the Evidence Act 1995 (NSW) ('the NSW Act') and to s 130 of the Evidence Act 1995 (Cth) ('the Cth Act'). This unity reflects the purpose of the Act, namely, 'to make fresh provision for the law of evidence that is uniform with Commonwealth and New South Wales law'.[61]

59 In New South Wales v Public Transport Ticketing,[62] the State of New South Wales claimed public interest immunity in relation to documents discovered by a State instrumentality, the Public Transport Ticketing Corporation, in proceedings against Integrated Transit Solutions Ltd and ERG Ltd. The documents encompassed five separate categories, including documents recording decisions of the Budget Cabinet Committee. On appeal, one of the issues to be determined was whether the primary judge ought to have relied on statutory immunity or immunity at common law as the applicable legal regime. The New South Wales Court of Appeal held that the assessment of the claims for public interest immunity was to be undertaken both by reference to common law and statute and that the statutory and common law regime operated similarly for all practical purposes. Allsop P (with whom Hodgson JA and Sackville AJA concurred) said:

Both the common law and s 130 require two broad stages of analysis: first the assessment of the character of the information or document (as state papers or as relating to a matter of state) and secondly a weighing or balancing exercise to assess the public interest on whether disclosure would prejudice the proper functioning of the government.

The reasons of the majority (Mason CJ, Brennan J, Deane J, Dawson J, Gaudron J and McHugh J) in Commonwealth v Northern Land Council lay out the principles to be applied in the operation of the common law of public interest immunity. It has been accepted that those principles assist in informing of the content and operation of the Evidence Act, s 130: Eastman v The Queen; Chapman v Luminis Pty Ltd (No 2). None of the parties in the present case suggested otherwise. It is therefore unnecessary to consider the extent to which, if at all, s 130 of the Evidence Act departs from common law principles.[63]

60 In Eastman v The Queen[64] the Full Federal Court[65] upheld the immunity to preclude disclosure of some information relating to 'police investigation methods, to informers, ... to the police assessment of some of the information gathered in the inquiry, and to matters unrelated to the murder investigation'.[66] In doing so, it applied the principles governing the immunity at common law:

Section 130 closely reflects the common law position. ... Referring to the common law position, Gibbs CJ in Alister v R said that the balancing exercise required the judge to consider 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 administration of justice would be impaired if by withholding the documents an accused would be denied a fair trial. The question therefore arises in the balancing exercise whether the documents contain evidence material to the accused's defence. In Alister Gibbs CJ said

' ... the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - ie, 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.'

If the document does not contain material evidence, the need for the balancing exercise does not arise and in the public interest the documents should not be discovered.

As to the test to be applied in determining whether there is or is likely to be evidence which is material, Gibbs CJ in Alister said:

'Although a mere "fishing" expedition can never be allowed, it may be enough that it appears to be "on the cards" that the documents will materially assist the defence.'

The test proposed by Wilson and Dawson JJ was that the applicants for production were required to show a basis for a rational inference of a likelihood that the documents would go substantially to proof of their innocence of the charge against them.[67]

61 In Chapman v Luminis Pty Ltd[68] von Doussa J confirmed the close relationship between the common law and statutory immunity when he applied common law principles to conclude that information about restricted women's knowledge did not attract the immunity under s 130 of the Cth Act and was to be adduced in evidence.[69]

62 The statement by Allsop P in Public Transport Ticketing referred to above[70] was cited approvingly by the Full Family Court of Australia in Dupont v Chief Commissioner of Police.[71]

63 In Dupont, the Chief Commissioner of Police objected to the production of complaints made to internal workplace police investigators about the professional conduct of the second respondent, Ms Unwin. The objection relied in part on a claim of public interest immunity. The objection was upheld. In the context of a custody dispute between Ms Unwin and the child's biological mother in the Family Court, the biological mother sought to set aside the order upholding the objection. The Court dismissed the appeal. Relevantly, two critical questions were raised in respect of the public interest immunity claim; first, whether the claim ought to be determined according to the common law or s 130 of the Cth Act and, secondly, whether the primary judge erred in applying the common law while characterising the documents as 'matters of state', a form of words emerging from statute.

64 The Court held that there was no discernible difference between the common law or s 130 of the Cth Act as to the applicable test to determine whether a document will attract public interest immunity.[72] It took into account New South Wales authority interpreting s 130 of the NSW Act[73] and stated that '[i]rrespective of which regime applies the outcome should be the same'.[74]

65 The Court also held that common law and statutory terms can be used interchangeably, as a consequence of which no error could be imputed to the primary judge. The Court said:

In Attorney General v Kaddour & Turkmani Sully J, with whom Spigelman CJ agreed, concluded that the definition contained in s 130(4) is non-exhaustive. Sully J said: '[t]here are no closed categories of "matters of state"...'. Clearly that must be correct.

It is well settled that the common law principles assist in informing the content and operation of s 130 of the Evidence Act: Eastman v R; Chapman v Luminis Pty Ltd [No 2]. None of the parties in the present case suggested otherwise.

Nothing to which we have been taken demonstrates that as to the availability of this privilege there is any difference between the common law and s 130 of the Evidence Act. As we explained earlier, we are satisfied that the terms 'matters of state' can be used interchangeably with terms such as 'state papers', matters of government, the public service and the like. We discern no error by the use of the words 'matters of state'.[75]

66 This approach is consistent with the observations made by the Australian Law Reform Commission in explaining the proposal upon which the statutory protection of public interest immunity was based:

It is proposed to interfere as little as possible with the common law as it has developed with respect to public interest privilege. It presently requires a balancing exercise, weighing the advantages of non-disclosure of information against the disadvantages ... As the courts have decided, it is not possible to adopt an approach where rules are provided for categories of evidence ... In fact what is required is a balancing of:

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. [Alister v The Queen].[76]

67 The common law distinction between 'class' claims and 'contents' claims has also been adopted under the statutory regime.[77] That distinction continues to inform the doctrine of public interest immunity, as illustrated by a number of contemporary authorities that refer to that classification.[78]

(3) Public interest immunity claims relating to police methodology

68 On the appeal, this Court was referred to a number of authorities considering public interest immunity in the context of police methods or procedures, the identity of informers, and police internal guidelines.

69 In Conway v Rimmer,[79] Conway, a former probationary police constable, had issued proceedings against his former superintendent, Rimmer, to recover damages for malicious prosecution. Conway had previously been tried and acquitted of the charge of larceny of an electric torch. In the course of discovery Rimmer had identified in his list of documents four reports made by him during Conway's probation and a fifth report made by him to his chief constable for transmission to the Director of Public Prosecutions concerning Rimmer's investigation of the larceny. Both Conway and Rimmer sought to rely upon the reports. The Secretary of State for the Home Department objected to the production of the reports by asserting public interest immunity over all the reports on the ground that they belonged to classes of documents disclosure of which would be injurious to the public interest. The Home Secretary gave evidence that: (1) four of the reports fell within a class of documents consisting of confidential reports by police officers to chief officers of police relating to the conduct, efficiency and fitness for employment of individual police officers; and (2) the fifth report fell within a class of documents comprising reports by police officers to their superiors concerning investigations into the commission of a crime.

70 The House of Lords rejected the proposition that the documents fell within classes of documents requiring confidentiality in the public interest. It held that the reports ought to be inspected by the Court in order to determine whether they could be the subject of a 'contents' claim to public interest immunity and that a balancing test applied of competing public interests, including an assessment of the importance of the reports to the litigation. The House of Lords made some instructive general comments about protecting police methodology or procedures.

The documents in this case are in the possession of a police force. The position of the police is peculiar. They are not servants of the Crown and they do not take orders from the Government. But they are carrying out an essential function of Government, and various Crown rights, privileges and exemptions have been held to apply to them. Their position was explained in Coomber v. Berkshire Justices and cases there cited. It has never been denied that they are entitled to Crown privilege with regard to documents, and it is essential that they should have it.

The police are carrying on an unending war with criminals many of whom are today highly intelligent. So it is essential that there should be no disclosure of anything which might give any useful information to those who organise criminal activities. And it would generally be wrong to require disclosure in a civil case of anything which might be material in a pending prosecution: but after a verdict has been given or it has been decided to take no proceedings there is not the same need for secrecy. With regard to other documents there seems to be no greater need for protection than in the case of departments of Government.[80]

72 The documents were produced and, after inspection by Lord Reid, he concluded that he could 'find nothing in any of them the disclosure of which would, in my view, be in any way prejudicial to the proper administration of the Cheshire Constabulary or to the general public interest'.[81] Accordingly, he ordered that the reports be made available in the litigation.

73 In Rogers v Home Secretary,[82] Rogers unsuccessfully applied to the Gaming Board ('the Board') for certificates of consent to run five bingo clubs. He commenced proceedings for criminal libel in respect of a letter written by the assistant chief constable of the County to the Board in reply to a request for certain information regarding Rogers. The Secretary of State for the Home Department made an application for certiorari in respect of two witness summonses directed to the chief constable and the secretary of the Board to give evidence and produce certain documents, including the letter. The Board made a similar application. The Divisional Court set aside the witness summonses opposed by the Home Secretary in so far as they required the production of documents; it made no order on the Board's application.

74 On appeal, the House of Lords held that the public interest required that the letters not be produced. It held that, if information given to the Board was liable to be disclosed, it could produce the undesirable consequence of sources withholding information. This would hamper the discharge of the statutory duty to ensure that a licence to conduct a gaming establishment is awarded to persons of good character.

It has long been recognised that the identity of police informers must in the public interest be kept secret and the same considerations must apply to those who volunteer information to the board.[83]

Sources of police information are a judicially recognised class of evidence excluded on the ground of public policy, unless their production is required to establish innocence in a criminal trial. This suffices, in my view, to conclude the appeals against Mr Rogers and in favour of the Gaming Board respectively.[84]

77 In D v National Society for the Prevention of Cruelty to Children,[85] D was the subject of a complaint by an anonymous informant to the effect that D's 14 month old daughter had been negligently treated. The National Society for the Prevention of Cruelty to Children ('the Society'), to whom the complaint had been made, sent an inspector to investigate the child's condition. The information proved to be untrue. D's health suffered as a consequence of the false accusation. D brought an action in negligence against the Society for failing properly to investigate the complaint. In the alternative, D sought an order that the Society disclose all documents relating to the complaint and the identity of the complainant in order that she could bring proceedings against the complainant.

78 The House of Lords upheld the Society's refusal to discover documents disclosing the identity of its informant. It was held, by analogy with the rule relating to the immunity accorded to police informants, that the public interest required preservation of the anonymity of informants about child abuse to avoid the risk that the Society's sources of information would 'dry up'. This would impede the effective functioning of the Society and the broader public interest in protecting children's welfare. Lord Diplock stated the relevant principles as follows:

The rationale of the rule as it applies to police informers is plain. If their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. By the uniform practice of the judges which by the time of Marks v Beyfus had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure.[86]

Then the law proceeds to recognise that the public interest in the administration of justice is one facet only of a larger public interest - namely, the maintenance of the Queen's peace. Another facet is effective policing. But the police can function effectively only if they receive a flow of intelligence about planned crime or its perpetrators. Such intelligence will not be forthcoming unless informants are assured that their identity will not be divulged: see Lord Reid in Conway v Rimmer. The law therefore recognises here another class of relevant evidence which may - indeed, must - be withheld from forensic investigation - namely, sources of police information: R v Hardy; Hennessy v Wright; Marks v Beyfus.

Here, however, the law adds a rider. The public interest that no innocent man should be convicted of crime is so powerful that it outweighs the general public interest that sources of police information should not be divulged, so that, exceptionally, such evidence must be forthcoming when required to establish innocence in a criminal trial: see the citations in R v Lewes Justices, Ex parte Secretary of State for the Home Department. It would appear that the balance of public interest has been struck, both in the general rule and in its rider, in such a way as to conduce to the general advantage of society, with the public interest in the administration of justice as potent but not exclusive.[87]

80 Attorney-General (NSW) v Stuart[88] also concerned the protection from disclosure of the identity of police informants. Stuart was the defendant in committal proceedings on a number of armed robbery related charges. Parts of a subpoena served by Stuart on the Commissioner of Police were the subject of a claim of public interest immunity by the Attorney-General. On appeal, the New South Wales Court of Appeal upheld the claim of public interest immunity in order to prevent the disclosure of the identity of a person as a police informer. Further, the Court held that, where public interest immunity is claimed to prevent the production of documents on the ground that the documents contain information relating to continuing police investigations, that claim ought not to be rejected because of the absence of any detail about the nature of those investigations where disclosure would necessarily result in the ventilation of some of the very information for which immunity is claimed.[89]

81 In considering the public interest in preserving the anonymity of police informers, Hunt CJ at CL (with whom Smart and Studdert JJ agreed) said:

Its rationale is that, if the identity of the informer were liable to be disclosed in a court of law, sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime: D v National Society for the Prevention of Cruelty to Children; Sankey v Whitlam; Cain v Glass (No 2) ...

This particular public interest in protecting the identity of police informers appears to be part of a broader public interest, the maintenance of social peace and order, as it is described in D v National Society for the Prevention of Cruelty to Children. As another part of that broader public interest, it is essential that nothing used by police in their pursuit of criminals should be disclosed which may give any useful information concerning continuing inquiries to those who organise criminal activities: Conway v Rimmer; or which may impede or frustrate the police in that pursuit; or which may reveal matters to the prejudice of future police activities: Young v Quin; Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police.[90]

82 Hunt CJ at CL relied in particular upon Young v Quin.[91] Quin was a Stipendiary Magistrate hearing committal proceedings in respect of alleged heroin offences. The Attorney-General for the Commonwealth, intervening by leave, objected on the ground of public interest immunity to questions directed to a police witness in the course of proceedings. The claim for immunity was supported by an affidavit of a detective chief inspector. It was sought to cross-examine the detective chief inspector on his affidavit. Quin held that the defence was entitled to cross-examine the detective chief inspector as of right on the issue of the claim to immunity. He also indicated that he would consider allowing certain cross-examination on general issues arising in the committal proceedings, although the defence would have to seek leave in this respect. An application to a single judge of the Federal Court to review Quin's decision preventing the defence from cross-examination as of right was dismissed.

83 On appeal, the central issue for the Full Federal Court[92] was the scope of permissible cross-examination. The Court upheld the claim for immunity on the basis that such cross-examination would not be in the public interest, in part because answers might reveal police methods of operation, thereby prejudicing future police activities. After consideration of the authorities, in particular Lord Simon's enunciation of the relevant principles in D v National Society for the Prevention of Cruelty to Children, Beaumont J concluded:

Prima facie, in my view, the matters sought to be opened up in the cross-examination of Inspector Wheatley fall squarely within a traditional head of the public interest, namely, that police methods of operation and the identity of police sources of information should not be publicly disclosed. Unless, therefore, the accused can demonstrate that the proof of these matters is necessary or desirable in order to maintain their innocence (see Marks v Beyfus ...), the appellant's objection to cross-examination in such areas should be upheld.[93]

84 Skrijel v Mengler[94] concerned the requested production of police guidelines for responses to threats received against police ('the guidelines'). The first defendant, Mengler, a police officer, had made reports of apprehensions that the plaintiff, Skrijel, would carry out threats against him and other members of the police. Skrijel sought to demonstrate that the reports were false. He sought production by the fourth defendant, the State of Victoria, of the guidelines. His aim was to show that Mengler did not comply with the procedures for which the guidelines provide, permitting the inference that Mengler did not harbour the fears which he reported holding.

85 The State of Victoria claimed public interest immunity over the documents. Superintendent Billing swore in an affidavit in support of that claim that the guidelines contained specific information currently in use concerning the methodology to be employed and actions to be taken in protecting police who have been subjected to threats of violence. It was also said that disclosure to 'some elements in society ... would compromise the effectiveness of the methodologies and actions and possibly place at risk a significant number of police and their families at present being dealt with in accordance with the guidelines'.[95]

86 Nettle J held that the public interest in maintaining confidentiality of the documents outweighed that in the production of the documents to Skrijel. Having inspected the guidelines personally, his Honour said:

The guidelines have been provided to me on a confidential basis and they appear to me to confirm what is said about them by Superintendent Billing. Insofar as I am able to assess such a matter without expert guidance, they seem to me in truth to be guideline procedures for dealing with threats of violence made against police members, and disclosure of their contents might well compromise the ability of police to deal with threats of that kind.[96]

In my opinion there is little which the plaintiff would gain by obtaining access to the guidelines, because any point of the kind which he seeks to make may be made by reference to so much of the material as is disclosed in Superintendent Billing's affidavit. That is to say, it is apparent from Superintendent Billing's affidavit that there are procedures in existence, and if he is so advised the plaintiff is at liberty to point to other evidence as demonstrating that there do not appear to have been any procedures of that kind followed in this case. On the other hand, as I have said, it appears to me that it would be very much against the public interest if the procedures were disclosed.[97]

88 In R v Mokbel (Ruling No 1),[98] the accused had been charged with importation of cocaine contrary to the Customs Act 1901 (Cth). The Crown relied on the recordings of a police informer and the evidence of former Victoria Police Drug Squad members. The accused filed a subpoena to produce documents relevant to the issues in the criminal proceedings held by the Office of Police Integrity ('OPI'). These documents related to the police informer and former police drug squad members, the latter having been the subjects of complaints and/or investigations for criminal and misconduct offences. The OPI objected to the subpoena partly on the ground of public interest immunity.

89 Gillard J ordered that the subpoenaed documents be produced in part in light of the accused's right to a fair trial, as the credibility of the police witnesses was central to the Crown case and the accused's defence. However, Gillard J noted that 'maintaining confidentiality and non-disclosure of investigations are extremely important for the proper carrying out of the functions of the [OPI]' and that '[t]he necessity to preserve anonymity in respect to informers, people making complaints and people involved in investigations cannot be overemphasised'.[99] Reviewing the authorities, he held that, while the documents generated in an OPI investigation did not fall within a class of documents immune from production, the contents of the documents impinged on the safety of sources such as registered informers, under-cover police operatives and members of the public. Ensuring the confidentiality of identities constituted an important reason to limit the extent of disclosure.

(4) Recent Victorian jurisprudence on public interest immunity

90 A recent relevant authority in this Court is Ahmet v Chief Commissioner of Police.[100] Ahmet initiated proceedings in the County Court against the State of Victoria and four individual members of Victoria Police alleging that they had assaulted him on two occasions whilst arresting him. He also claimed that he had been falsely imprisoned, battered and maliciously prosecuted. He subsequently served a subpoena in order to obtain complaint and investigation records held by the Chief Commissioner of Police relating to the four police officers. The Chief Commissioner objected to the production and inspection of the documents on two grounds: first, on the basis that the documents had no legitimate forensic purpose and, secondly, on the ground of public interest immunity under the Act.

91 On the interlocutory application in the County Court, the judge upheld the objection and set aside the subpoena without inspecting the documents. He determined that the evidence before him supported non-disclosure of the documents as the public interest in preserving confidentiality outweighed the public interest in permitting disclosure. In so holding, the judge relied on general statements made in an affidavit by a Sergeant of Police within the disciplinary branch of Victoria Police as to the policy underlying non-disclosure, the nature of the documents sought, and the likely impact of disclosure. It was emphasised that disclosure would reveal investigative methods, methods of intelligence gathering, information obtained by compulsory processes, and confidential communications passed internally. The evidence was that disclosure would impede frank and thorough investigation of police complaints by inhibiting the open exchange of views and information within Victoria Police. The judge identified the legitimate forensic purpose for which the documents would be used as that of demonstrating a tendency on the part of members of the police to behave in the manner alleged. On that basis the documents were relevant. He said that were it not for the protection conferred by public interest immunity, he would be inclined to permit inspection by Ahmet.

92 The Court of Appeal granted an application for leave to appeal, allowed the appeal and set aside Judge Misso's orders to the extent appealed. Nettle JA and Sloss AJA began by observing that the contested documents were properly the subject of a 'contents' claim rather than a 'class' claim. They said:

The classification of public interest immunity claims as 'class' claims and 'contents' claims is recognised as a 'rough but accepted' division. In Commonwealth v Northern Land Council the High Court said the classification:

serves to differentiate those documents the disclosure of which would be injurious to the public interest, whatever the contents, from those documents which ought not to be disclosed because of the particular contents.

Their Honours went on, however, to emphasise that whatever might have been the position in the past, since Sankey v Whitlam, even where documents fall within a class in respect of which there are strong public policy considerations militating against disclosure, 'the immunity from disclosure of documents falling within such a class is not absolute.' Further, their Honours said:

The claim of public interest immunity must nonetheless be weighed against the competing public interest of the proper administration of justice, which may be impaired by the denial to the court of access to relevant and otherwise admissible evidence.

It is clear that documents which relate to the investigation of police misconduct or complaints against police do not, as a class, attract public interest immunity: R v Chief Constable of the West Midlands Police; Ex parte Wiley. See also R v Polley.

In those circumstances, only a 'contents' claim could be pursued in the present case. That required the Chief Commissioner to identify with some particularity the basis for his contention that the disclosure of the information contained in the subpoenaed documents would harm some aspect of the public interest. In State of Victoria v Brazel, the Court of Appeal said:

The claim for immunity must be articulated with rigour and precision, and supported by evidence demonstrating the currency and sensitivity of the information, so as to constitute a compelling case for secrecy. Anything less will be unlikely to suffice.[101]

93 Responding to the submission that the affidavit relied upon by the Chief Commissioner of Police failed to identify with any precision what aspect of the contents of the documents would harm the public interest upon disclosure, the Court referred again to Brazel.[102] It stated:

In State of Victoria v Brazel this Court emphasised that the decision to be made on a claim for public interest immunity will depend upon the circumstances in which the claim is made. The Court said:

Everything turns on the character of the particular information in issue and the nature of the particular litigation (or administrative investigation) in which the occasion for disclosure of the information arises. Before embarking on the balancing exercise, the court must assess the strength of the arguments for non-disclosure and disclosure respectively. The court must scrutinise carefully what is said to be the potential damage to the public interest if the information is disclosed and, equally, what is said to be the significance of the information in the litigation.[103]

94 The Court accepted the submission that the statements made in the affidavit were of a general nature. It held that, in a 'contents' claim, the judge was obliged to inspect the subpoenaed documents personally to form a view as to whether any damage might result from their disclosure. To fail to do so inhibited the proper weighing of the merits of the competing claims. The matter was remitted to the judge for re-consideration.

95 The five grounds of appeal relied upon by Ryan seek to identify specific errors made by the judge in ruling that the documents in dispute were not relevant to the proceeding and/or were not to be adduced in evidence because they attracted the statutory immunity. It is convenient to consider grounds 2 and 3 together as they raise common issues, and similarly grounds 4 and 5.

(1) Ground 1 - would disclosure prejudice the government of the State (s 130(4)(f))?

96 Ryan submits that a claim for public interest immunity in respect of police tactics for the use of horses at lawful public demonstrations does not enliven s 130 of the Act (or s 131A) because such police tactics cannot be classified as 'matters of state'. He submits that police methodologies of the kind involved in the present case do not affect the proper functioning of the government of the Commonwealth or a State because the protection conferred upon 'matters of state' is limited to decision-making at the highest level of government. Ryan submits that s 130(4)(f) in particular is a statutory expression of the foundational category of public interest immunity, which concerns government documents.[104] That category is said to protect 'what must be kept secret for the protection of government at the highest levels and in the truly sensitive areas of executive responsibility'.[105]

97 Ryan relies on Royal Women's Hospital v Medical Practitioners Board of Victoria[106] where a hospital's claim for public interest immunity failed because the information did not satisfy the stringent criteria necessary for immunity, being wholly unrelated to decision-making at the highest levels of government.[107] He contends that the judge fell into error in adopting the novel course proposed by the State to treat the instant case as involving 'matters of state' by reason of prejudicing the proper functioning of government under s 130(4)(f).

98 The State submits that the expression in s 130 governing information or a document that may be precluded from inspection or excluded from evidence, namely, information or a document that 'relates to matters of state', is to be afforded a broad meaning given the width of the words 'relates to'.[108] It argues that the breadth of meaning is confirmed by the opening words of s 130(4), which makes it clear that the immunity is not limited to the deemed categories in paras (a) to (f): '[w]ithout limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state'. It relies upon the observation made by Spigelman CJ in R v Young[109] that a matter may be one of state where it has 'a dimension that is governmental in character'.[110]

99 Specifically with respect to s 130(4)(f), the State submits that the expression 'the proper functioning of government' is not restricted to 'government at the highest levels', as Ryan contends. In support of this proposition the State relies upon a number of matters: (1) several of the deemed categories are unrelated to the 'highest' levels of government suggesting that there is no general requirement of high executive responsibility; (2) the common law public interest immunity was not so confined;[111] (3) at common law, public interest immunity could protect sensitive material, disclosure of which would prejudice police activities,[112] including police methodology;[113] and (4) the application of s 130 in this context, as with the common law immunity, turns upon the content of the particular documents at issue, the character of the particular information, and the nature of the litigation in which the occasion for disclosure arises.[114] With respect to this last matter, the State here does not seek to pursue a 'class' claim but rather accepts that it needs to establish that the immunity is attracted by reference to the contents of the documents in dispute. For this purpose, it made the documents in dispute available for inspection on the appeal and the Court has inspected them.

100 It follows from the discussion above[115] that I agree with the State that the statutory immunity is intended substantially to reflect common law principles and its content and operation is informed by the common law.[116]

101 The State submits that the judge correctly determined that Victoria Police is part of 'government' because of its responsibility for maintaining law and order and for performing government functions such as crowd control. As such, its functions fall within the natural and ordinary meaning of sub-s 130(4)(f). By extension, the State submits that the documents deal with the proper functioning of government. The State claims, on the evidence and given the judge's inspection of the material, her Honour correctly accepted that there is a genuine public interest in protecting the information from disclosure.

102 In my view, the State is correct to emphasise that the words 'relates to' are words of considerable breadth. However, the particular connection required must depend upon the statutory context and the subject matter of the enquiry.[117] As Dawson J said in O'Grady v Northern Queensland Co Ltd:[118]

The words 'in relation to', read out of context, are wide enough to cover every conceivable connexion. But those words should not be read out of context ... What is required is a relevant relationship, having regard to the scope of the Act. Where jurisdiction is dependent upon a relation with some matter or thing, something more than a coincidental or mere connexion - something in the nature of a relevant relationship - is necessary ... see Reg. v. Ross-Jones; Ex parte Green.[119]

103 O'Grady was concerned with the exclusive jurisdiction of the Wardens Court in a mining context. That is quite distinct from the context here. However, the context in which the phrase 'relates to' is used here, namely, that of conferring protection from disclosure upon documents or information because of the public interest associated with that protection, suggests that there must be a relevant relationship between the information or document in issue and the matters of state relied upon. As the purpose of the immunity is to exclude what would otherwise be relevant evidence, what is required is something more than an incidental connection. Nevertheless, the words 'relates to' are of broad import and this is confirmed by the non-exhaustive and illustrative nature of the categories in paras (a)-(f) of s 130(4).

104 In R v Young,[120] Spigelman CJ was concerned to identify some limits on the notion of 'public interest' that gives rise to the immunity. He said:

The words 'public interest immunity' are sometimes treated as if they extended to any circumstance in which exclusion should be supported on the grounds of public policy - and in that sense involve a 'public interest'. ... The terminology of 'public interest' should not be permitted to extend the basis of the doctrine.

'Public interest immunity' is concerned with, and the terminology should be confined to, the conduct of governmental functions. Section 130 of the Evidence Act 1995 reflects this proposition by use of the formula: 'that relates to matters of state'.

The 'public interest', to which this immunity refers, requires a dimension that is governmental in character. The references to 'public interest' in the frequently cited passages from the case law, should be so understood: eg, Sankey v Whitlam ... Alister v The Queen. These passages did not intend to encompass every situation in which it could be said that some form of public policy could be served by non-disclosure. In my opinion, it is not correct to treat public interest immunity as if it were a 'residual category' of circumstances in which courts limit access to information on the basis of weighing the public interest in disclosure against any factor that can be described as a 'public interest'. ...

The references in the case law to the proposition that the categories of public interest are not closed, need to be similarly confined ... Such references should be understood in the sense identified by Mason J in Australian National Airlines Commission v Commonwealth ... His Honour referred to what was then still called 'Crown privilege' and added ...:

'... it would be an error to regard the categories of documents which attract privilege as necessarily closed. As time passes it is inevitable that new classes of documents important to the working of government will come into existence and that detriment to the public interest may occur in circumstances which cannot presently be foreseen.' (Emphasis added)

Public interest immunity arises because of 'the need to safeguard the proper functioning of the executive arm of government and of the public service' (emphasis added), to use the formulation which Stephen J in Sankey v Whitlam ... described as 'the reasons customarily given' for the immunity. This formulation was adopted by Mason CJ, Brennan J, Deane J, Dawson J, Gaudron J and McHugh J in Commonwealth v Northern Land Council ... and described by their Honours as 'the ordinary reasons supporting a claim for public service immunity'.[121]

105 However, although Spigelman CJ focused upon the need to identify some boundaries on the immunity, and in particular to separate public from private interests,[122] he accepted that the immunity was not confined to the higher levels of government or the 'truly sensitive areas of executive responsibility',[123] a general limitation for which Ryan contended. Rather, he understood that it was the workings of government, including the workings of those who are responsible for the proper functioning of the executive government, the public service, which gives rise to the public interest that warrants protection. By extension, in my view it can be inferred that there is a public interest of the relevant kind in protecting the information or documents reflecting the workings or operations of those who are responsible for the governmental function of the maintenance of social peace and order, the police. Those operations include police methodology and tactics.

106 In R v Young Beazley JA[124] commented on the significance of the public interest in social peace and order when she described the categories of class interest (state secrets, cabinet documents, and police informers) while acknowledging that the rationale for each type of public interest immunity claimed had to be properly identified. She said:

The overarching public interest which requires as a matter of law that such information be protected has been described as 'the maintenance of social peace and order.'[125]

The public interest in maintaining social peace and order has been said to require protection of any information about continuing inquiries which, if disclosed, would be useful to those who organise criminal activities, may impede police in the pursuit of criminal activity or may prejudice future police activities: see Attorney-General (NSW) v Stuart ... per Hunt CJ at CL and the cases there cited.[126]

108 In Royal Women's Hospital[127] this Court[128] held that the medical records of a public hospital with respect to a female patient's treatment in the hospital were not protected from disclosure to the Medical Practitioners Board of Victoria ('the MPBoard') by public interest immunity. The MPBoard sought access to the patient's medical records at the hospital to investigate a complaint made by a third party alleging that medical staff at the hospital had terminated the patient's pregnancy, at 32 weeks, to preserve her psychiatric health. The patient did not consent to the release of her records and the MPBoard obtained a search warrant which was executed. The hospital applied unsuccessfully to the Magistrates' Court seeking the return of the documents seized. Its appeal to the Trial Division of the Supreme Court was dismissed. It appealed to the Court of Appeal.

109 In dismissing the appeal, Warren CJ noted that '[b]y its own admission, the appellant [the hospital] invites the court to recognise a "fresh category" of public interest immunity'.[129] The claim made was a class claim (and not a contents claim) so that 'all medical records of "women patients in public hospitals seeking advice and treatment concerning reproductive matters including obstetrics and gynaecological care" should be immune from compulsory production.'[130] Her Honour considered that the hospital faced 'a threshold problem ... that is, whether or not a public interest immunity can be claimed outside of the context of a "matter of state" or "the conduct of governmental functions"'.[131] In other words, her Honour identified the problem facing the hospital as that of seeking to extend public interest immunity beyond the workings of government. She considered that the hospital failed to:

pass an initial hurdle first, that is, to establish that the class of documents in question (and consequently the medical records of Ms X) are governmental in character. This is where the appellant's argument fails.[132]

110 In her Honour's view, the medical records failed to attract public interest immunity because they were not governmental in character. She relied on the observations of Spigelman CJ in R v Young that:

The dividing line between private and public interests is not always easy to draw. Public institutions - relevantly ... hospitals - provide private services, indistinguishable from the same services provided by private institutions.[133]

111 The medical records did not describe the operations of government because they recorded the provision of private services.

112 Maxwell P agreed that the hospital's claim for public interest immunity 'fails at the threshold'.[134] He also considered the claim to be 'for the recognition of a new class'[135] of public interest immunity. In describing the scope of the immunity, his Honour referred to 'the principal category'[136] of public interest immunity as being that which concerns 'decision-making by the instruments of government at the highest level'.[137] In his view, the medical records failed to attract the immunity because 'the information [they contained] was wholly unrelated to decision-making "at the highest levels of government"'.[138] He considered that '[p]roperly characterised, the class of information which defines the hospital's class claim is information of a purely personal nature'.[139]

113 I do not read the observations made by Warren CJ or Maxwell P as inconsistent with the reasoning of the judge here.

114 First, the observations in Royal Women's Hospital about the 'highest levels of government' were made in response to a class claim and not a contents claim, as here, and were made in the context of the common law immunity and not in the context of the statutory immunity, albeit that the content and operation of the statutory immunity is informed by the common law. Within the context of the statutory immunity, there is a need to distinguish between the general category of 'matters of state' and the particular category, under para (f) of sub-s (4) of s 130, of information, which, if adduced in evidence, would 'prejudice the proper functioning of the government of ... a State'. In my view, I do not consider that the remarks about deliberations at the highest levels of government can inform the general requirement for information to 'relate to matters of State'. This must be so given the specific interests identified in s 130(4)(a)-(f) which clearly extend beyond high-level deliberations within the executive government. For example, information that might prejudice the investigation of proceedings with respect to contraventions of the law leading to civil penalties (s 130(4)(d)) does not fall within the category of information at 'the truly sensitive areas of executive responsibility'.[140]

115 Secondly, I do not consider that the remarks of the Chief Justice and Maxwell P indicate that 'the proper functioning of government' in the context of para (f) of sub-s (4) should be confined to deliberations at the highest level of executive government. This is in part because para (f) is addressed not simply to the character of the information involved but more expressly to the effect the disclosure of the information would have on the functioning of the workings of government as is apparent from the need to consider whether documents adduced as evidence would 'prejudice the functioning of government'. It is the effect of disclosure upon the proper functioning of government rather than the level of sensitivity of the information that is all-important. Of course, a court may readily infer that the proper functioning of government would be prejudiced if information was adduced in evidence that recorded deliberations at the highest levels of government, or if the information related to a particularly sensitive area of executive responsibility. But that is not to deny that an inference may be open that the proper functioning of government would be prejudiced if information was adduced in evidence that did not record deliberations at the highest levels of government but instead related, relevantly, to police methodologies which, if released, could impair police operations.

116 Thirdly, I do not consider that their Honours sought to deny that there were categories beyond the foundational or principal category of governmental information that attracted public interest immunity at common law. Maxwell P expressly referred to the 'police informer' category and its 'successive extensions' approvingly, as detailed by Charles JA.[141]

117 Charles JA emphasised that in D v National Society for the Protection of Cruelty to Children the House of Lords 'rejected the view that public interest as a ground for non-disclosure of documents or information was confined to the effective functioning of departments or organs of central government'.[142] He accepted the need for a governmental interest[143] but emphasised that the protection of an informer's identity was in substance governmental as it 'is, in one sense, very much related to a central government function ... [because] the administration of justice ... is a crucially important aspect of the maintenance of social peace and order'.[144] He relied upon the recognition by Lord Simon, mentioned above,[145] that 'the public interest in the administration of justice is one facet only of a larger public interest - namely, the maintenance of ... peace'.[146] This reflects the emphasis given by Beazley JA in R v Young, referred to above,[147] to the overarching public interest in the maintenance of social peace and order.

118 In my view, it is necessary to be mindful of the comments of Spigelman CJ that the 'public interest' in this context is not intended to subsume any public policy that might be served by non-disclosure.[148] Nevertheless, it is also important to recognise that there is a public interest in the safeguarding of the proper functioning of the police in their control of public gatherings, including lawful protests, without which there are real risks to the safety and protection of individuals who participate in those gatherings, or who find themselves caught up in them, and to the police officers themselves. If information on police methods of crowd control were released into the public domain in a court of law[149] those methods could be undermined and subverted, including by those intent on committing criminal offences. These are the matters which underpin the recognition of police methods of crowd control as a 'matter of state' within the context of s 130(4). Whether, in any individual case, the balance lies in favour of disclosure or non-disclosure under s 130(1) will depend upon the balancing exercise to be undertaken in the circumstances of the case in accordance with the factors in s 130(5). However, in my view, it would be wrong not to recognise that the documents in dispute 'relate to matters of state' and thus give rise to a public interest in their protection from release to be balanced against factors in favour of disclosure.

119 I consider that it would be wrong to exclude police methods from the statutory immunity, when Eastman;[150] Young v Quin;[151] and Skrijel v Mengler[152] demonstrate that there is a similar underlying public interest in their protection from disclosure as that supporting the exclusion from evidence of the identity of informers, namely, that release would hinder the police 'in their duty of preventing and detecting crime'.[153] There is no indication that such exclusion is what the legislature intended. Nor can support be gained for that exclusion by the remarks of Warren CJ and Maxwell P in Royal Women's Hospital, especially where the documents are assessed according to their content and not as a class, as required in Conway v Rimmer[154] and Ahmet v Chief Commissioner of Police.[155] As observed in Conway v Rimmer, the police, although they 'are not servants of the Crown and they do not take orders from the Government ... they are carrying out an essential function of Government'.[156]

120 To my mind Victoria v Seal Rocks Victoria (Australia) Pty Ltd[157] takes the matter no further. There the documents produced to the arbitrator, in respect of which public interest immunity was claimed, were Cabinet documents 'in the sense that they were or formed part of papers submitted to the Victorian cabinet or related to its deliberations'.[158] There were also some other documents for which immunity was claimed 'as being related to the framing of government policy at a high level'.[159] The principal issue was whether the Supreme Court has inherent jurisdiction to resolve an issue of public interest immunity and whether the jurisdiction had been ousted by the Commercial Arbitration Act 1984. In holding that the Court has jurisdiction which had not been excluded, this Court[160] remitted the matter to a judge of the Trial Division to determine whether the immunity should apply. Given the nature of the documents at issue, it is not surprising that Ormiston JA referred to public interest immunity as 'a right by way of an immunity or a privilege which enures in the body politic ..., and not merely in the executive, being designed to protect the operation of the instruments of government at the highest level'.[161] In making the observations he did he was addressing the 'right of the Crown or government to assert that cabinet documents and the like are immune from production'.[162] I do not read his Honour as intending to exclude other well-recognised categories of public interest. The context was all-important and should not be ignored.

121 It is important to note, however, that on the approach I have adopted to the construction of s 130(4)(f), the nature of the agency holding the information may be relevant to the question of whether the immunity is attracted, and not simply the character of the information held. This is because it may be easier to anticipate the type of prejudice that might flow from the disclosure of information held by a particular agency, here relevantly the police, than it would be to identify the prejudice to the functioning of government from some other agency. Whether the question of the nature of the agency which held the information was of little or no relevance at common law, as Maxwell P concluded,[163] is a matter on which I need not comment save to say that it is clear that the identity of the agency, even if relevant, was not decisive.[164]

122 It follows, from the reasons I have given, that I consider that here the judge was not in error in concluding that the police are engaged in an important governmental function. I consider that she was correct in identifying para (f) of s 130(4) as the appropriate 'matter of state' and I agree that the documents in dispute bear a relevant relationship to that matter of state in that adducing those documents in evidence would prejudice the proper functioning of the government of the State. This is so because the release of the documents may inhibit or frustrate effective policing to the general detriment of the public and the public interest associated with the maintenance of social peace and order in the specific context of public gatherings, including gatherings for lawful protest.

(2) Grounds 2 and 3 - relevance and importance to proceeding (s 130(5)(a) and s 130(5)(c))

124 Ryan submits that the judge was wrong to conclude that the documents in dispute are irrelevant to the proceeding and wrong to consider that, even if relevant, they are neither probative nor important to the proceeding.

125 There is an inter-relationship between the two issues of relevance and importance. The judge considered whether the documents in dispute were relevant to the proceeding (in effect under s 56 of the Act)[165] as a precursor to determining, under s 130(5)(a), whether the documents in dispute had any importance to the proceeding. The focus was on the question of whether the documents in dispute attracted the immunity but the judge's conclusions on relevance no doubt contributed to the manner in which she formulated her order, namely, that the 'redacted portions of the documents, being the subject of this proceeding, are not relevant and are not to be adduced in evidence as they relate to matters of state pursuant to s 130 of the Evidence Act'. The judge's order (and her reasons) make it clear that she was concerned not only with whether the documents in dispute were exempt from inspection because they attracted public interest immunity, but also with whether the documents in dispute were inadmissible either because they lacked relevance to the proceeding or because they were precluded from being adduced as evidence by the immunity. The parties must be taken to be aware of the implications of the judge's order.[166]

126 Ryan submits that the documents in dispute set out techniques and guidelines by which Turner was trained to ride her horse at public demonstrations, thereby outlining the standards to be met by Mounted Branch officers. He submits that, as such, the material is both relevant and important to the proceeding because it would enable the Court to determine at trial if Turner complied with the Mounted Police techniques and guidelines when she rode her horse at the demonstration and was involved in the incident. If he could establish at trial that Turner had not complied with the techniques and guidelines as revealed in the documents in dispute, Ryan submits that it would support the claims that:

(b) there was no lawful excuse for Turner breaking away from the other riders and it would assist to challenge her assertion that she was carrying out her lawful duties;

(c) and it would be likely to increase the damages received by Ryan and Forbes.

127 Ryan submits that the judge fell into error in making two findings in this respect, namely, that (1) the purposes for which he sought the document were not contained in his pleadings as 'the Statement of Claim refers to the Mounted Branch (a plurality) advancing on the protesters';[167] and (2) the documents in dispute were not 'probative' of the actions taken by either of the defendants (Turner and the State) and, as such, did not assist the Court to resolve the issues in dispute.[168] Ryan submits that the judge was wrong to read [37] of the statement of claim so narrowly as only to apply to the plural and maintains that the pleadings can encompass an allegation that Turner broke away from the other riders. He submits that the purposes for which he seeks access to the documents in dispute are far broader than the issue of whether Turner 'broke away' from the other riders, that issue being only one aspect of the question of lawful excuse.

128 Furthermore, Ryan submits that the documents in dispute would be probative with respect to the issue of whether Turner failed to prevent her horse from 'treading' on the foot of Forbes and 'rolling' onto Ryan. It is argued that the central purpose for inspecting the documents in dispute is in order to establish the standard to which Turner is expected to ride and thereby to assess Turner's conformity with the techniques and guidelines of the Mounted Police at the time of the protest at MIDC. The question of Turner's conformity to the expected standard is submitted to be relevant to the issues, as mentioned, of recklessness, lawful excuse and damages, all of which will be live at trial. Ryan submits that the judge erred in failing to consider the central purpose for which he seeks access to the documents in dispute and, as such, she failed to undertake a proper consideration of the 'importance' of the documents in dispute in the proceeding and the nature of the cause of action to which the information relates, pursuant to s 130(5)(a) and s 130(5)(c).

129 To this the State responds by arguing that Ryan's contention that the judge failed to undertake a proper consideration of the 'importance' of the documents lacks substance. The State accepts that the judge was required to consider the importance of the information to the proceeding, and that she did so by referring correctly to both s 130(5)(a) of the Act and relevant authority. It submits that the judge then carefully considered the pleaded allegations and inspected the underlying materials. The State thus argues that the judge addressed the correct question and correctly concluded that the documents were of 'nominal, or no importance'.[169]

130 In my view, the difficulty Ryan faces is that the judge was correct to identify that [37] of the statement of claim does not contain the allegation that Turner 'broke away from other riders'. The allegation is, as mentioned above,[170] that 'mounted police' including Turner 'made an advance on the protesters'. I consider that the State is right to submit, and the judge was correct to conclude, that this allegation is one made about members of the Mounted Police as a group; that is, as a collective. It does not impliedly incorporate an allegation that Turner deviated from the conduct of the other members of the mounted police. Rather, by stating 'Mounted police, including the first defendant',[171] the allegation directly suggests that Turner did exactly what the other members of the Mounted Police were doing. It does not impliedly contain the allegation that Turner departed from her colleagues intentionally or recklessly.

131 Furthermore, I consider that the judge was correct to conclude that there is no allegation of recklessness in the pleadings. There is no statement that Turner foresaw the probability (or possibility) of Troophorse Upwey treading on Forbes' foot and Troophorse Upwey rolling onto Ryan. There is no statement that Turner proceeded regardless of foreseeing that probability (or possibility).

132 Rather, the substance of the allegation in [38], in respect of Ryan, is that Turner intentionally carried out a harmful manoeuvre (causing Troophorse Upwey to roll onto a person who is lying on the ground) and that this behaviour had been practised.

133 It is clear that the documents in dispute cannot themselves reveal what conduct was actually engaged in by Turner. That will be a matter of concrete evidence as to what actually occurred at the demonstration.

134 I consider that the only relevance that, hypothetically, the documents in dispute, including the guidelines and manuals, could have to the allegation in [38] is to the claim that the manoeuvre was 'rehearsed'. That is, if the guidelines and manuals directed such manoeuvres to be carried out it might raise the probability that Turner deliberately carried out such a manoeuvre because she was acting in conformity with such directions. The manuals and guidelines might then be relevant to the larger question of whether Turner had a lawful excuse or whether the conduct was lawful more generally. However, as the judge said, after inspection, '[t]here were no documents or information of this nature'.[172] This is consistent with Sergeant Astill's evidence that there was no training of this kind.[173] Having inspected the documents in dispute, I confirm the judge's observation and consider that she was correct to conclude that the documents in dispute are not relevant to this issue.

135 I agree with the judge's observation that the documents in dispute would not help the court to resolve at trial whether the allegations of treading or rolling had been made out.[174]

136 I do not accept that the documents in dispute would be relevant if they failed to include directions for such manoeuvres. In my view the question of whether, if the conduct alleged in [38] can be proved, Turner had a lawful excuse for what she did is not assisted by demonstrating that she was not directed to engage in the conduct she did by a police manual or guideline. Turner has not sought to rely on the guidelines or manuals in her defence. Turner's conduct is either lawful or not lawful and that is not gauged by reference to a standard of conduct expected for crowd control prescribed by a police manual or guideline. The fact that Turner engaged in conduct (if she did) that the documents in dispute say nothing about can hardly assist the trial of the issues in the proceeding. Nor can descriptions of alternative techniques of control to the one alleged assist in the resolution of the proceeding.

137 As the judge noted, there is no allegation of negligence or failure to meet a prescribed standard of conduct. There is no allegation of negligent procedures or negligent training, or that Turner was negligent in the manner in which she handled Troophorse Upwey. The central forensic contest lies in the question of whether Troophorse Upwey trod upon Forbes' foot or rolled onto Ryan and that whether, if that conduct occurred, it was a controlled deliberate manoeuvre or a failure by Turner to prevent Troophorse Upwey from behaving in that way. These questions turn on the facts and circumstances of the case. (This is absent, as I have said, the suggestion that the training involved the use of deliberate manoeuvres of the type alleged in respect of which, upon inspection, the documents do not assist.)

138 There is an allegation of lack of good faith on Turner's part. However, the allegation is not made by Ryan (or Forbes) but obliquely between Turner and the State (the defendants).[175] Ryan's case is that Turner acted in good faith; that is, Ryan's allegation against the State depends upon Turner acting in good faith, not the opposite. Turner agrees that she acted in good faith. In those circumstances, I do not consider that it would be appropriate to permit Ryan to rely on an allegation between Turner and the State as a basis for arguing that the documents are relevant to an issue that he has not put in contest. In any event, I do not consider that the allegation of lack of good faith takes the matter further for the same reasons I have advanced; namely, that the documents in dispute would not assist in establishing or denying that Turner acted in good faith.

139 In any event, if I am wrong and the documents in dispute pass the threshold of relevance, I consider that their importance to the proceeding is minimal and I agree with her Honour's characterisation in that respect. Absent the guidelines directing the engaging in rolling manoeuvres, their silence on the specific conduct in dispute (or conduct of that general character) contributes little or nothing to the proceeding.

140 It is true that the documents in dispute were included in an affidavit of documents by the State and, to that extent, have been assessed as in some way relevant to the proceeding. However, the threshold of relevance applied by a legal practitioner may differ considerably from an assessment that would be given by a court. Moreover, the process of discovery does not entail that each discovered document will be of importance to a proceeding. As the Full Court of the Federal Court said in New South Wales v Ryan[176] the status of a document as a discoverable document does not mean that every passage of the document is of significance. The Court said:

A matter on which the primary judge relied ... is the concession made by the State that the report with its appendices is, apart from the question of public interest immunity, a discoverable document. But this does not mean that every passage in it is of significance, and in particular, it does not mean that the disputed passages are of significance. In Commonwealth of Australia v Northern Land Council ... Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ, in their joint judgment, said:

'The Commonwealth made discovery of these documents and there is no dispute, therefore, that they were discoverable. That is to say, it may be assumed that the notebooks contain entries which relate to matters in issue in the action in the sense they would, or would lead to a chain of inquiry which would, either advance the Northern Land Council's case or damage that of the Commonwealth.'

This, plainly enough, is the effect of an admission of discoverability, an effect which leaves it an open question whether particular passages in dispute are or include entries of the kind described in the joint judgment.

In the present case, neither the original judgment of the primary judge, nor his second judgment, contains any finding which shows, or from which it can be inferred, that the disputed passages contain material that is of such significance that the interests of justice call for it to be made available to the respondent.[177]

141 I consider that the judge was correct to infer that the fact that the documents in dispute were discovered documents was not determinative of the issues before her.

142 This conclusion is reinforced by the results of the exercise, mentioned above,[178] by which the parties were invited to reduce further the scope of the request by identifying documents which are 'entirely irrelevant'. In response Ryan excluded from his request certain redacted parts of document 2, the Mounted Branch Defensive Tactics Training Program 2012, namely Unit (or Chapter) 6: 'Baton training' and Units 9-12 (inclusive) 'Handcuffing' etc. However, he maintained his request for inspection for Units 3, 4, 5, 7 and 8 of document 2 and with respect to each of the documents 3-11 (namely, the entire document).

143 Yet a description given by the State of the matters in the remaining Units of document 2 make it apparent that they bear no relevance to the pleaded allegation of Troophorse Upwey being used by Turner deliberately to fall and roll onto Ryan or the associated allegations that she had acted without lawful excuse and intentionally assaulted and battered Ryan and Forbes. For example, the general description of the Units of document 2 is as follows:

• riders avoiding being pulled from the horse and risks for riders.

• threat of violence or weapon, communications with subjects & intercepting vehicles.

144 While Unit 5, 'Unarmed Impact' and Unit 7, 'Control techniques' may appear to be the most likely to be relevant, the evidence of Sergeant Astill, which I can confirm by reason of inspection, was to the effect that they do not include rehearsed, controlled techniques of the character alleged.

145 Some of the material in document 2 includes information about how to disarm someone; how a member of the Mounted Police is to protect his or her firearm; how to use capsicum spray; and how to conduct searches of vehicles. There is no allegation in the pleadings (and no factual basis in the circumstances of the case) concerning disarming, the use of a firearm or capsicum spray, or the search of a vehicle. None of this bears upon whether Troophorse Upwey stumbled, fell, trod on Forbes' foot or rolled onto Ryan. However, on the other hand, as discussed, the disclosure of this material would alert others to techniques of the Mounted Police that could be resisted or subverted.

146 Documents 3-11 are concerned with varieties of horse formations and bear no relevance to the pleaded allegation of the harmful conduct in which Turner engaged.

147 I consider that the judge was correct to conclude that the documents in dispute are either irrelevant or of nominal or no importance to the proceeding.

148 I reject grounds 2 and 3 of the grounds of appeal.

1. Grounds 4 and 5 - likely effect of access and restrictions on release (s 130(5)(d))

149 Ryan submits that the judge was wrong to conclude that the likely effect of disclosure was that it 'may hamper future police operations'.[179] This was the primary basis upon which the judge held that the factor in s 130(5)(d) was relevant to the balancing exercise. The judge's conclusion was based on the affidavit of Sergeant Astill dated 20 August 2014 to the same effect.[180]

150 Ryan submits that the judge's conclusion rests on a false assumption that, upon inspection, the information in the documents in dispute would be conveyed to a large number of people with the adverse intentions ascribed to them by Sergeant Astill. He argues, first, that Sergeant Astill's affidavit was overly broad and speculative and, secondly, to the extent there is a risk that any such harm would flow from disclosure, the judge failed to consider that the documents in dispute would be subject to an implied undertaking to use the information only for the proper conduct of the proceeding in accordance with the Harman principle. Moreover, the 'implied undertaking' is in truth 'an obligation of law arising from circumstances in which the material was generated and received'.[181]

151 Furthermore, Ryan submits, the judge failed to consider that, if she was not satisfied that the protection afforded by the Harman principle would be sufficient, she could make further orders, for example, ruling that only Ryan's counsel could inspect the documents in dispute. Ryan submits that the trial judge wrongly understood Seymour[182] to stand for the proposition that confidential documents ought not to be provided to counsel. He contends that Seymour merely confirms the narrow proposition that, before resolving a public interest immunity application, the documents forming the basis of the application should not be provided to counsel.

152 Ryan further submits that police manuals and procedures are routinely supplied in coronial inquests and that no exception should be made for the police manuals and guidelines that make up the documents in dispute. In supplementary submissions,[183] Ryan candidly admits (quite appropriately) that he has been unable to establish whether it is more common for these type of materials to be provided in redacted or un-redacted form. Ryan refers to two proceedings[184] where manuals have been provided in un-redacted form although there was no judicial determination of whether the un-redacted form was appropriate.

153 On the matter of the production of police manuals in coronial inquests, the State submits that there is no practice of routinely supplying current and sensitive police manuals in un-redacted form to the Coroners Court and to interested parties appearing in coronial inquests. Rather, manuals that are not sensitive, or that do not relate to the training of specialist units, may be provided; for example, Victoria Police Manual Instructions are routinely provided. However, where sensitive manuals or procedures are provided, they are produced with current and sensitive portions redacted in reliance upon public interest immunity, with suppression or non-publication orders additionally in place on occasion.

154 The State submits that only in very rare circumstances, where portions of sensitive police documents are critically relevant to a Coroner's functions under s 67 of the Coroners Act 2008, will the Chief Commissioner produce sensitive manuals and procedures in an un-redacted form, usually under the protection of a suppression order.

155 It is apparent that little or no reliance can be properly placed upon practices that are said to have developed in the coronial context.

156 With respect to the likely effects of disclosure and restrictive orders that could be made, the State contends that the judge correctly assessed the likely effect of disclosure and its necessary limits. It submits that the generality of Sergeant Astill's affidavit was not properly the subject of complaint. Gillard J made it plain, in R v Mokbel (Ruling No 1),[185] that public interest immunity can be stated in general terms because too much detail may serve to defeat or undermine the basis of such a claim. So too did Hunt CJ at CL in Attorney-General (NSW) v Stuart.[186] Before the judge, the State proposed that, if necessary, Sergeant Astill could give more detailed evidence in camera but her Honour found it unnecessary to go beyond her inspection of the documents in dispute. Moreover, the State submits, the need to preserve confidentiality is reinforced in the present case, given that the Mounted Branch is deployed in public crowds and disclosure could imperil the safety of Mounted Branch officers and the public.

157 I consider that the affidavit evidence of Sergeant Astill was sufficient to reveal the type of concerns to the safety of the Mounted Police, and the public, including those lawfully participating in protests, that might arise if the documents in dispute were disclosed. For example, Sergeant Astill made it clear that the documents in dispute contain details about the tactics used by the Mounted Police for crowd control and he identified specific risks. He said:

These documents [Mounted Branch training documents] reveal detailed information with respect to the way in which the Mounted Police utilise tactics in different environments. ...

Although the use of the Mounted Branch at demonstrations has been made known to the wider public by video clips published by the media, it is not widely known how specific tactics are used in their entirety, including the way in which the horses are configured for a particular tactic and how those tactics are executed. ... [I]f specific information detailing how each tactic is used by the Mounted Branch is widely known to the public, it has the potential to adversely affect the ongoing effectiveness of the tactics used by the Mounted Branch at demonstrations as protesters may be able to identify and anticipate the use of those tactics, and employ counter-measures to target the police response.

... I believe the safety of the members of the Mounted Branch could be jeopardised if training tactics and practices became known to the public as protesters could potentially take steps to dislodge a rider from a horse or isolate a rider from their detail.

158 In my view, one would not expect, in the circumstances of a claim for public interest immunity, that the Court would need to arrive at a precise assessment of the probability of the occurrence of specific harm because the particular type of harm might depend upon a range of variables that cannot all be anticipated.[187]

159 With respect to the operation of the Harman principle, the State submits that the implied undertaking to limit the use of information obtained through discovery to the proper conduct of the proceeding only applies until the information is received into evidence.

160 It has been acknowledged, for example, by J Forrest J, in Deputy Commissioner of Taxation v Karas[188] that the authorities on this issue do not speak with one voice; as he said, 'it is not easy to synthesise the effect of [the] judgments, particularly those of a binding nature'.[189]

161 In Harman the House of Lords held that the implicit undertaking given by counsel that he or she will use documents discovered in a proceeding only for the purpose of that proceeding does not expire when the documents are read out in open court, for example, in counsel's opening. Counsel's undertaking remains and counsel may commit a contempt if he or she goes on to provide access to the discovered documents to journalists for publication, or otherwise.

162 Lord Diplock (with whom Lord Roskill agreed[190]) considered that the undertaking remained, and was enforceable by proceedings for contempt, even if the documents were received into evidence. He said:

[A]n order for production of documents to a solicitor on behalf of a party to civil litigation is made upon the implied undertaking given by the solicitor personally to the court (of which he is an officer) that he himself will not use or allow the documents or copies of them to be used for any collateral or ulterior purpose of his own, his client or anyone else; and any breach of that implied undertaking is a contempt of court by the solicitor himself. Save as respects the gravity of the contempt no distinction is to be drawn between those documents which have and those which have not been admitted in evidence; to make use for some collateral or ulterior purpose of the special advantage obtained by having possession of copies of any of an adverse party's documents obtained upon discovery is, in my view, a contempt of court.[191]

163 The other member of the majority, Lord Keith, confined his remarks to observing that the undertaking did not expire upon discovered documents being read in open court.

164 As J Forrest J noted,[192] the High Court in Hearne v Street formulated the Harman principle in terms that indicated that the receipt into evidence of documents or information obtained through discovery is sufficient to relieve a legal practitioner of the implied undertaking:

Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.[193]

165 What is relevant here is that it also follows from Harman that once the documents have been read in open court, or admitted into evidence, persons in court, including journalists, are free to take notes. Absent any suppression order, the information is available to be reproduced by others and used by the public in ways they see fit. The information could, without some other restrictive order, become 'widely known to the public' in the manner anticipated by Sergeant Astill.

166 In Harman Lord Keith explained the apparent anomaly of the majority's position by emphasising that the implied undertaking given by a legal practitioner arising from the process of discovery in a civil proceeding is independent of any obligation with respect to the confidentiality of the documents arising under the general law. The loss of any confidentiality attaching to information, by reason of being exposed in open court, does not diminish the obligation of the practitioner arising from the implied undertaking:

The argument for [Harman], however, goes the length that because the public are notionally present [in open court], and anyone might have come in and noted down the contents of any discovered document which is read out, the implied obligation against improper use comes to an end. That is not a proposition which I can find acceptable upon any rational ground consistent with the proper administration of justice. The theory behind the proposition is that the reading out of the document destroys its confidentiality, and that, apart from considerations of copyright and defamation, the law does not prohibit the dissemination of documents which are not confidential. The implied obligation not to make improper use of discovered documents is, however, independent of any obligation existing under the general law relating to confidentiality. It affords a particular protection accorded in the interests of the proper administration of justice. It is owed not to the owner of the documents but to the court, and the function of the court in seeing that the obligation is observed is directed to the maintenance of those interests, and not to the enforcement of the law relating to confidentiality.[194]

167 Here, as mentioned, the risk is that once the information becomes public, it will be used to undermine police protocols for controls during protests, with the consequent risk of safety to the public, including those participating lawfully in a protest. It is clear that the implied undertaking recognised as the Harman principle does not avoid that risk.

168 However, Ryan submits that it is important to take into account the stage of his proceeding in the County Court. He emphasises that the issue of public interest immunity has arisen here only at the stage of discovery and he is not seeking to place any of the documents in dispute into evidence, or at least not yet. He argues that, given the early stage of the proceeding, the Harman principle provides as much protection as is necessary.

169 I disagree. It is clear from its origins that the Harman principle is not directly addressing the general maintenance of the confidentiality of information which is the focus of the State's concern. Disclosure by third parties is only a breach if the third party has knowledge of the origins of the material in legal proceedings.[195] The implied undertaking may not provide an adequate form of enforcement of confidentiality and additional orders may be needed to protect properly the confidentiality of the documents in dispute. Moreover, it was ultimately conceded on behalf of Ryan that if this Court allowed the appeal and permitted inspection of the documents in dispute on the basis that they were not protected by public interest immunity, the trial judge would be obliged to permit them to be adduced in evidence (absent any other exclusionary rule) if Ryan chose to adduce them. It was conceded that, in those circumstances, if the State sought to protect the confidentiality of the documents in dispute, it would need to obtain some additional order restricting publication. Absent such orders, on the strength of Hearne v Street, the protection afforded by the Harman principle would be exhausted and the information would be in the public domain.

170 With respect to the power of the County Court to restrict access to the documents in dispute to legal practitioners alone, I consider that the difficulties identified by the Full Federal Court in Seymour were general ones associated with release of material only to legal representatives.[196] The principal difficulty identified is the compromising effect such a restriction can have on the relationship between a lawyer and his or her client. French, O'Connor and North JJ were alive to the difficulties that the release of documents to counsel alone can bring. They said:

In Jackson v Wells ... Wilcox J gave consideration to a submission that documents for which public interest immunity was claimed and which had grounded the issue of telecommunications interception warrants, be made available to the legal representatives of the parties. His Honour said:

'I gave this submission anxious consideration. It was a course apparently considered by the High Court in Alister, although ultimately not adopted. As I have indicated, I would have welcomed the assistance of counsel upon the content of the documents. The applicants would, no doubt, have felt more satisfied that the documents were rigorously examined by the Court if their counsel had been given the opportunity to take the Court through the documents. But, in the end, I rejected the proposal. It involves a number of problems. 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 client 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 unauthorised disclosure. Weighing the assistance likely to be obtained from counsel's submissions against the sensitivity of the material, it seemed better not to accede to [the] suggestion.'[197]

171 While the question addressed by the Court in Seymour was whether counsel alone should be permitted to have access to the documents before the immunity claim was determined (which they rejected),[198] it is clear that the problems such access raised, most particularly the inhibition on counsel from giving full and frank advice to the client, have general application.

172 Furthermore, orders for the taking of evidence in camera, and suppression orders, or other orders restricting the publication of the conduct of proceedings in court are never made lightly. They interfere with the principle of open justice and will only be made where there is a proper basis for them. The conclusions reached by the judge, which I accept, demonstrate that there would be no proper basis here for the making of such orders.

173 It is important to recognise, in this context, that it would be wrong to approach any of the factors in s 130(5) in isolation. The general power a court has to restrict publication of proceedings may meet concerns about the otherwise adverse effect of access to documents for which public interest immunity is claimed, in the context of s 130(5)(d), but the justification for making such an order is likely to be affected by the assessments made with respect to the other factors in sub-s (5). Here, those other factors include, relevantly, the importance of the documents to the proceeding (s 130(5)(a)) and the nature of the cause of action to which the information relates (or fails to relate) (s 130(5)(c)). The conclusions reached here by the judge with respect to s 130(5)(a) and s 130(5)(c) left little room for any serious consideration of the making of orders for restricting access under s 130(5)(d). While this does not mean that it is optional for a judge as to whether to consider the likely effect of access or the possible forms of restriction upon publication under s 130(5)(d), as part of the balancing exercise prescribed under s 130(1), it does mean that the consideration given to those matters may be slight if the judge has already formed the view, as here, that what is sought has no or nominal importance to the proceeding. In any event, I do not consider the judge's consideration of this factor to be slight.[199] In my view, her Honour properly considered the likely effect of access and the difficulties that might arise from orders restricting publication.

(4) Notice of contention - does common law public interest immunity apply?

174 As the State has been successful in establishing that the documents in dispute are protected by public interest immunity under the Act, it has proved unnecessary to determine the notice of contention.

175 In my opinion, the judge was correct in concluding that the documents in dispute are exempt from production and inspection, and are inadmissible in the proceeding, because they lack relevance to the proceeding. Furthermore, and in any event, I consider that the judge was correct in concluding that the documents in dispute are protected by public interest immunity under the Act.

177 For the reasons given by Tate JA, I agree that the appeal should be dismissed.

[1] Ryan v Turner [2014] VCC 1692 ('Reasons'). The appeal is brought pursuant to leave granted by this Court: Ryan v State of Victoria [2014] VSCA 340 (Weinberg JA and Ginnane and Sloss AJJA).

[2] The claim was made in the context of pre-trial discovery and inspection. Section 131A of the Act provides that in determining objections in preliminary proceedings of courts pt 3.10 (relevantly s 130) is to apply with any necessary modifications. See [31] below.

[3] Turner is the first defendant in the County Court proceeding. Turner is not a respondent to the appeal.

[4] The expression 'documents in dispute' is defined at [24] below.

[6] Forbes is the second plaintiff in the County Court proceeding. Forbes did not appeal.

[8] The pleading uses the American spelling of 'manoeuvre'.

[9] The State of Victoria is the second defendant in the County Court proceeding.

[10] Section 123 of the Police Regulation Act was repealed by s 284 of the Victorian Police Act 2014. It applies here because the claim came into existence before 1 July 2014.

[11] These are the descriptions used before the judge. See Reasons [1].

[13] See Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 11th ed, 2014), [1.1.40] ('Odgers').

[14] See, for example, Haddara v The Queen [2014] VSCA 100 [12], [51]-[72] (Redlich and Weinberg JJA); The Hon J D Heydon QC, 'The Non-Uniformity of the "Uniform" Evidence Acts and Their Effect on the General Law' (2013) 2 Journal of Civil Litigation and Practice 169, 176-7.

[15] See [58]-[67] below, 'Relationship between common law and statutory immunity'.

[16] Reasons [7] (citations omitted).

[17] Section 133 of the Act enables the Court to inspect the produced documents to determine if a claim of public interest immunity is justified.

[23] [2014] VSC 65.

[24] Ibid [24](k) cited in Reasons [21] (citations omitted) (emphasis added).

[25] See [10] above.

[26] Reasons [22], quoting from the affidavit of Sergeant Astill.

[28] See [10] above.

[33] See [17] above.

[35] The judge referred to s 130(4)(d) and s 130(4)(e) (rather than s 130(5)(d) and s 130(5)(e)) but this was clearly a slip. See Reasons [32]-[33] and [34].

[37] Ibid [32]. See [35] above.

[38] [1998] FCA 1224 ('Seymour').

[43] The grant of leave extended to all the grounds of appeal. The grounds have been modified in light of the definitions already adopted.

[47] [1983] 1 AC 280 ('Harman').

[48] Victoria v Brazel [2008] VSCA 37; (2008) 19 VR 553, 566 [38] ('Brazel').

[49] [1936] HCA 40; (1936) 55 CLR 499. This stands in contrast to the approach in New South Wales where the New South Wales Court of Appeal has held that the principles in House v The King limit appellate review of a decision of public interest immunity: New South Wales Commissioner of Police v Nationwide News Pty Ltd [2007] NSWCA 366; (2007) 70 NSWLR 643, 646 [26].

[50] [1978] HCA 43; (1978) 142 CLR 1.

[52] Brazel [2008] VSCA 37; (2008) 19 VR 553, 568 [47].

[53] Burmah Oil Co Ltd v Bank of England [1979] UKHL 4; [1980] AC 1090, 1113-4, 1129; Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, 412, 414, 438.

[54] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 60; D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171, 230.

[55] Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604, 616 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ), citing Burmah Oil Co Ltd v Bank of England [1979] UKHL 4; [1980] AC 1090, 1111 (Lord Wilberforce).

[56] Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404.

[57] Australian National Airlines Commission v Commonwealth [1975] HCA 33; (1975) 132 CLR 582.

[58] J D Heydon, Cross on Evidence (LexisNexis Butterworths, 10th ed, 2015) [27175]-[27185].

[59] Brazel [2008] VSCA 37; (2008) 19 VR 553, 557 [8], 560 [16], 569 [52].

[60] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 44, 46 (Gibbs ACJ), 59-60 (Stephen J), 96 (Mason J).

[61] The Act, s 1. Section 131A of the Act, which, as mentioned, extends, relevantly, the application of public interest immunity to preliminary proceedings of courts, differs slightly from s 131A of the NSW Evidence Act because the NSW Act does not refer to disclosure requirements made under a search warrant. The difference is not material here.

[62] [2011] NSWCA 60 ('Public Transport Ticketing').

[63] Ibid [42]-[43] (citations omitted).

[64] (1997) 76 FCR 9 ('Eastman').

[65] von Doussa, O'Loughlin and Cooper JJ.

[66] Eastman (1997) 76 FCR 9, 65.

[68] [2000] FCA 1010; (2000) 100 FCR 229, 246 [54].

[69] However, he made orders under the Federal Court of Australia Act 1976 (Cth) directing that the evidence be taken in camera.

[70] See [59] above.

[71] [2015] FamCAFC 64 ('Dupont') (Ainslie-Wallace, Ryan and Johns JJ). See also R v Lipton [2011] NSWCCA 247; (2011) 82 NSWLR 123, 148 [84].

[72] Dupont [2015] FamCAFC 64 [49].

[73] See Singtel Optus Pty Ltd v Weston [2011] NSWSC 1083; (2011) 81 NSWLR 526, 532 [29]; Public Transport Ticketing [2011] NSWCA 60 [42].

[74] Dupont [2015] FamCAFC 64 [7]. It also held that, with respect to pre-trial procedures, under the Cth Act (by contrast with the Act), the common law applied.

[75] Ibid [55]-[57] (citations omitted).

[76] Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) vol I, 490-1 [864]-[866] (citations omitted).

[77] See, eg, Ahmet v Chief Commissioner of Police [2014] VSCA 265 [20]-[22]. See also SBEG v Secretary, Department of Immigration and Citizenship [2012] FCA 277; (2012) 291 ALR 281, 286 [15]-[16] (considering s 130 of the Cth Act).

[78] See, eg, Murphy v Victoria [No 3] [2014] VSC 624 [32]; Tatts Group Ltd v Victoria [2013] VSC 301 [4], [26].

[79] [1968] UKHL 2; [1968] AC 910.

[82] [1973] AC 388.

[85] [1977] UKHL 1; [1978] AC 171.

[88] (1994) 34 NSWLR 667.

[90] Ibid 674-5 (emphasis added) (citations omitted).

[91] (1985) 4 FCR 483. See also R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681, 708 [142] (Beazley JA).

[92] Bowen CJ, Sheppard and Beaumont JJ.

[93] Young (1985) 4 FCR 483, 495 (emphasis added). See also Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police [1991] FCA 92; (1991) 31 FCR 523; Woodroffe v National Crime Authority [1999] FCA 1128; (1999) 107 A Crim R 384, 397-8 [46]-[47].

[94] [2003] VSC 137.

[98] [2005] VSC 410.

[100] [2014] VSCA 265.

[101] Ibid [20]-[22] (citations omitted).

[102] [2008] VSCA 37; (2008) 19 VR 553.

[103] [2014] VSCA 265 [27].

[104] R v Dowe (2007) 4 DCLR (NSW) 263 [10].

[105] Science Research Council v Nasse [1979] UKHL 9; [1980] AC 1028, 1088 (Lord Scarman).

[106] [2006] VSCA 85; (2006) 15 VR 22 ('Royal Women's Hospital').

[108] D C Pearce and R S Geddes, Statutory Interpretation in Australia, (LexisNexis Butterworths, 7th ed, 2011) [12.7].

[109] (l999) [1999] NSWCCA 166; 46 NSWLR 681.

[111] Conway v Rimmer [1968] UKHL 2; [1968] AC 910, 940; D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171; Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 38-9, 60, 63. See [54], [56], [69]-[71], and [77]-[79] respectively above.

[112] See Young v Quin (1985) 4 FCR 483, 492, 494-5; Attorney General (NSW) v Stuart (1994) 34 NSWLR 667, 675; Skrijel v Mengler [2003] VSC 137. See [82]-[83], [80][81], and [84]-[87] respectively above.

[113] Skrijel v Mengler [2003] VSC 137 (Nettle J); R v Roberts [2004] VSCA 1; (2004) 9 VR 295, 335-7 [96]-[103] (Batt JA, Buchanan and Chernov JJA agreeing); R v Mokbel (Ruling No 1) [2005] VSC 410, [26] (Gillard J). See [84]-[87] (Skrijel v Mengler) and [88]-[89] (R v Mokbel (Ruling No 1)).

[114] Brazel [2008] VSCA 37; (2008) 19 VR 553, 563 [27], 568 [47]-[48].

[115] See [58]-[67] above, Relationship between common law and statutory immunity.

[116] See especially Eastman v The Queen (1997) 76 FCR 9, 63-4; Tatts Group Ltd v Victoria [2013] VSC 301 [26]; Murphy v Victoria [No 3] [2014] VSC 624 [30]-[31].

[117] Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510, 519-20 [25] (French CJ and Hayne J).

[118] [1990] HCA 16; (1990) 169 CLR 356 ('O'Grady').

[120] [1999] NSWCCA 166; (1999) 46 NSWLR 681.

[122] See [110] below.

[123] See [96] n 105 above.

[125] R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681, 705 [130] (citations omitted).

[126] Ibid 708 [142] (citations omitted).

[127] [2006] VSCA 85; (2006) 15 VR 22.

[128] Warren CJ, Maxwell P and Charles JA.

[129] Royal Women's Hospital [2006] VSCA 85; (2006) 15 VR 22, 32 [35].

[130] Ibid 40 [81]; see also 43 [93] (Charles JA).

[131] Ibid 27 [17] (citations omitted).

[133] Ibid 31 [33], quoting from R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681, 694 [58].

[134] Royal Women's Hospital [2006] VSCA 85; (2006) 15 VR 22, 32 [39].

[140] See [96] n 105 above.

[141] Royal Women's Hospital [2006] VSCA 85; (2006) 15 VR 22, 34 [50], referring to the judgment of Charles JA at 46-7 [102]-[107]. Charles JA dissented but agreed in the disposition of the appeal.

[145] See [79] above.

[146] D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171, 232.

[147] See [106]-[107] above.

[148] See [104] above.

[149] See [149]-[173] for a discussion of whether restricted access would be viable.

[150] (1997) 76 FCR 9; see [60] above.

[151] (1985) 4 FCR 483; see [82]-[83] above.

[152] [2003] VSC 137; see [84]-[87] above.

[153] See D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171, 218 and Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667, 674-5 at [78] and [81] above, respectively.

[154] [1968] UKHL 2; [1968] AC 910; see [69]-[72] above.

[155] [2014] VSCA 265; see [90]-[94] above, especially [92].

[156] [1968] UKHL 2; [1968] AC 910, 953 (Lord Reid); see [71] above.

[157] (2001) 3 VR 1 ('Seal Rocks'). This was relied upon by Ryan.

[159] Ibid 2 [1], n 2. See also 3 [4].

[160] Ormiston, Phillips and Buchanan JJA.

[161] Seal Rocks (2001) 3 VR 1, 6-7 [17].

[163] Royal Women's Hospital [2006] VSCA 85; (2006) 15 VR 22, 35 [54].

[164] R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681, 694 [60].

[165] Section 56 of the Act provides: '(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible'.

[166] It follows that on the dismissal of the appeal the judge's order will remain in force and will apply not only to pre-trial discovery but also to the question of admissibility into evidence. See [175] below. I consider that a distinction between those issues, in the circumstances of the case, would be artificial.

[168] See Reasons [24], as extracted at [41] above.

[170] See [10] above.

[174] See [40]-[41] above.

[175] See [18] and [20] above.

[176] (1998) 101 LGERA 246 (Burchett, Hill and Madgwick JJ).

[178] See [24] above.

[180] See [45] above.

[181] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125, 156-7 [102] (Hayne, Heydon and Crennan JJ).

[182] [1998] FCA 1224. See Reasons [33].

[183] There was no evidence by affidavit or otherwise on this issue. It arose in the context of oral submissions made on behalf of Ryan and the parties were permitted to file supplementary written submissions on the issue.

[184] One is said to involve the State producing an Oleoresin Capsicum Spray Training Manual and Standard Operating Procedures and the other to involve the provision of an Operational Safety and Training Tactics manual as part of the coronial inquest brief.

[185] [2005] VSC 410 [26].

[186] (1994) 34 NSWLR 667, 681. See [80] above.

[187] The context is quite different from one where assessments are made, for example, about the likelihood of re-offending for which expert evidence may be available: see RJE v Secretary to the Department of Justice [2008] VSCA 265; (2008) 21 VR 526.

[188] [2012] VSC 143 ('Karas').

[190] Harman [1983] 1 AC 280, 327. Lord Roskill agreed with both Lord Diplock and Lord Keith.

[192] Karas [2012] VSC 143 [22].

[193] [2008] HCA 36; (2008) 235 CLR 125, 154-5 [96] (Hayne, Heydon and Crennan JJ) (emphasis added) (citations omitted).

[194] Harman [1983] 1 AC 280, 308.

[195] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125, 162 [112].

[196] [1998] FCA 1224.

[197] Ibid 9 (emphasis added) (citation omitted).

[198] The Court determined that Einfeld J had erred in permitting senior and junior counsel alone to inspect the sworn applications for search warrants, for the purpose of making submissions on whether there was a valid claim for public interest immunity, on various conditions, including that 'they would not reveal their contents or any part thereof to any person either directly or indirectly except the court'.