SA v New South Wales Crime Commission

Section 80(3) Crime Commission Act

1. Subsection (1) of s 80 lists the persons to whom the section applies. It includes executive officers and past and present members of staff of the Commission and persons who may have been given information by the Commission on a confidential basis. Subsection (3) of s 80 is relevant to the present case (with emphasis added): "(3) A person to whom this section applies cannot be required: (a) to produce in any court any document or other thing that has come into the person's possession, custody or control because of, or in the course of, the exercise of the person's functions under this Act, or (b) to divulge or communicate to any court any matter or thing that has come to the person's notice in the exercise of the person's functions under this Act."
2. For the purposes of section 80, the word "produce" is defined in subs (6): "Produce includes permit access to or inspection of".
3. There are minor differences between the wording of s 80 Crime Commission Act and s 111 Independent Commission Against Corruption Act 1988 (NSW) ("ICAC Act"). The differences are so slight and their impact so insignificant that for all practical purposes the two sections are identical. Section 111 Independent Commission Against Corruption Act has been considered judicially with respect to the operation of court procedures for compulsory production of documents.
4. In "A" v Independent Commission Against Corruption [2014] NSWSC 1167 ("A v ICAC") the Independent Commission Against Corruption (hereafter referred to as "ICAC") had served upon the plaintiff a summons requiring it to produce documents. In this Court the plaintiff alleged the issue of the production summons was invalid and sought to have it quashed. In aid of this application, the plaintiff served upon ICAC a notice seeking production of any documents which had been provided to, considered by or relied upon by ICAC in connection with the decision to issue the summons. It is not clear whether the plaintiff's notice to produce called for production as between the parties (UCPR r 21.10) or production to the Court (r 34.1).
5. ICAC invoked subs(3) of s 111 ICAC Act (almost identical to s 80(3) Crime Commission Act) and said that the plaintiff's notice to produce should be set aside because it purported to require ICAC to produce documents which, according to s 111(3), ICAC's officers could not be required to produce. The Court held that although the plaintiff was seeking production as against ICAC, a distinct legal entity, whereas s 111(3) in terms confers the exemption from having to produce documents upon individual officers, s 111(3) nevertheless applied: [11] - [15]. The Court further held that s 111(3) was applicable to documents which had been generated by ICAC itself and was not limited to documents which may have come into its hands from external sources: [16] - [22]. In both of these respects the first instance decision was upheld in the Court of Appeal in A v Independent Commission Against Corruption [2014] NSWCA 414 per Basten JA at [42] and [46] and per Ward JA at [163] - [178] (Bathurst CJ agreeing at [7]).
6. Section 111 ICAC Act was again considered in Cunneen and Ors v Independent Commission Against Corruption [2014] NSWSC 1571. There the plaintiff sought an order under r 59.9 that it be provided with a statement of reasons for the decision of ICAC to conduct an investigation into certain allegations against her.
7. At first instance Hoeben CJ at CL declined to make an order for the provision of reasons under r 59.9, at [32] - [40]: "[32] Fundamental to the plaintiffs' submission is the relationship between s 111 of the Act and r 59.9 UCPR. On that issue I agree with the defendant that r 59.9 is a form of subordinate legislation directed to the power of the Court generally. When deciding whether to make an order pursuant to the rule in a case like this, the Court has to have regard to the provisions of s 111 of the Act. This is because s 111 is not a form of subordinate legislation and is directed precisely to the question agitated before the Court, i.e. an obligation to provide a Statement of Reasons which would include setting out the findings of fact and the evidence or other material on which the findings were based. [33] The issue raised involves the interpretation of s 111. This has already been carried out in part by Harrison J in "A". I respectfully adopt his Honour's reasoning and conclusions on the issues which were before him. Although s 111 is framed as applying to 'officers of the Commission' rather than the Commission itself, the section is to be read as applying to the Commission ("A" at [15] and Hagan v Independent Commission Against Corruption [2001] NSWSC 890 at [18] - [20]). Read in that way, s 111 applies to Notices to Produce or other compulsory processes such as a Notice under r 59.9 UCPR directed to the defendant. [34] Further, s 111 applies both to documents received from third parties, as well as documents created by officers of the defendant in the exercise of their functions ("A" at [16] - [22]). It is clear from its terms that the plaintiffs' Notice under r 59.9 UCPR seeks the production of information and/or documents specifically referred to in s 111(3). The wording of that section is in clear terms: 'A person to whom this section applies shall not be required ... to produce in any court any document or ...to divulge or communicate to any court any matter ...' except in the circumstances specified by the section. [35] Even though the prohibition is directed to the defendant, or one of its officers and not the Court, it is clear that it affects in a practical sense the efficacy of any order which the Court might make. If the Court made an order that the defendant 'provide the plaintiff with a copy of the decision', this would come within the ambit of s 111(3)(a). Similarly, if the Court ordered the defendant to provide the plaintiffs with a 'Statement of Reasons for a decision', this would come within the ambit of s 111(3)(b) noting that a Statement of Reasons must 'refer to the evidence or other material on which [the decision-maker's] findings were based' (r 59.9(3)(b) UCPR). [36] If the Court made orders of that kind, the defendant would not be obliged to comply with the orders. In other words, such orders would be ineffective. [37] This gives rise to another consideration. As the parties agreed, the power in r 59.9 UCPR involves an exercise of discretion by the Court. In considering whether to make an order of the kind sought by the plaintiffs pursuant to that rule, the Court has to take into account, in the exercise of its discretion, s 111(3) of the Act and the fact that such an order would be ineffective because not only is the defendant not obliged to comply with it, but its counsel has said that it will not. [38] There are other matters which affect the exercise of the Court's discretion, pursuant to r 59.9. While the Court has no information concerning the defendant's reasoning process, it does have before it the terms of the allegations and is aware that the 'investigation' is at its earliest stage, i.e. a decision has been made to investigate and for that investigation to take place as a public hearing. Given the nature of the allegations and the very early stage of the 'investigation', it may well be that the refusal of the defendant to provide a Statement of Reasons is because to do so would be prejudicial to the conduct of the investigation as it would require the defendant to prematurely disclose material (see "A" at [19]). This is notwithstanding that there is no affidavit or other evidence to that effect. [39] It is trite law that there is no general duty at common law to give reasons for administrative decisions (Public Service Board of NSW v Osmond [1986] HCA 7; 159 CLR 656). While a failure to give reasons may make the plaintiffs' task more difficult in challenging the two decisions which they impugn, such challenges are still available although on a more limited basis (Avon Downs Pty Ltd v The Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360). [40] It is also relevant to the exercise of the discretion that any argument as to prejudice to the investigation would not exist once the defendant has concluded the investigation by completing a report. As has become common in recent times, judicial review is available and is often sought, to quash recommendations and findings made in an ICAC report following an investigation. Such judicial review could be sought on the basis that the investigation was never within jurisdiction and/or that no public hearing should have been held. While it can be said that such an approach is not entirely satisfactory since reputational damage would already have occurred, a positive finding in favour of a plaintiff and the quashing of a report can still be of considerable value. This was recognised by the High Court in Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564."
8. In [37] - [40] above his Honour took into account a number of circumstances bearing upon the exercise of his discretion under r 59.9. The first of these, at [37], was that an order for ICAC to provide its reasons would be ineffective because of s 111(3) ICAC Act, by force of which ICAC would not be obliged to comply with such an order. Counsel for ICAC in reliance on s 111(3) said that ICAC would not comply.
9. At the commencement of [37] his Honour referred to the discretionary nature of orders under r 59.9 as "another consideration", thereby indicating that the preceding paragraphs of the reasons, [32] - [36], were concerned with a more direct and definitive basis upon which s 111(3) precludes the making of a r 59.9 order. His Honour's holding at [32] - [36] is that s 111(3) applies to r 59.9 and prevents the Court from making an order under the rule against ICAC. Section 111(3) renders ineffective any such order which the Court may purport to make.
10. On appeal in Cunneen v ICAC [2014] NSWCA 421 this holding was considered by Ward JA at [154] - [164]. At [157] her Honour found that there was "force to the submission by the applicants that a statement of reasons produced in compliance with the Court order is not (or at least not necessarily) a document falling within s 111(3)". That proposition would have no application in the present case because, as referred to at [7], there is an extant statement of reasons by the Crime Commission. There would be no warrant for ordering the preparation of a fresh document: to be a true statement of reasons, any fresh document prepared under an order of the Court would have to be a repetition of the reasons which were documented contemporaneously. Ward JA continued: "Nevertheless to the extent that the statement of reasons sought in the present case was one that required the disclosure of documents or material otherwise caught by s 111(3) the difficulty considered in A v ICAC remains".
11. I understand the reference to "the difficulty considered in A v ICAC" to mean the constraint upon the Court not to order the production of documents or to enforce a party's notice to produce where the effect of doing so would be to require an officer of ICAC to produce a document for which the section creates an immunity against production.
12. Basten JA did not find it necessary to come to any firm conclusion about the operation of s 111(3): [118] - [122]. Bathurst CJ agreed with both Basten and Ward JJA on issues other than one substantive question, which his Honour identified (see [28]). Accordingly, it appears to me that the holding of Hoeben CJ at CL at first instance, as I have summarised it at [17] has been endorsed in the Court of Appeal and would be binding upon a single judge with respect to the operation of s 111(3).
13. As s 80(3) is indistinguishable from s 111(3), I consider that I am bound to hold that it, also, prevents the Court from making an effective order under r 59.9 that the Commission "provide the plaintiff with a copy of" the reasons. I would independently have reached that conclusion about the interpretation of s 80(3) and its interaction with r 59.9, for the following reasons.
14. The plaintiff argued that insofar as s 80(3) states Commission officers "cannot be required… to produce in court any document" of a class which would include the reasons, the words "produce in any court" should be interpreted as prohibiting only a requirement that the Crime Commission produce documents physically in a court room or building or to a judicial officer.
15. I do not consider that such an interpretation of the words is sustainable. In normal usage within the law of procedure in New South Wales, where it is intended to refer to the placing of documents in the hands of a court, whether at a registry or exhibits office or in a courtroom with a judicial officer present, the preposition "to" is used in the prepositional phrase "to the court". That usage may be seen in the following examples in the UCPR (emphasis added): "1.9 Objections to production of documents and answering of questions founded on privilege r 1.9(1) This rule applies in the following circumstances: (a) if the court orders a person, by subpoena or otherwise, to produce a document to the court or to an authorised officer, …" "20.23 Report r 20.23(1) Unless the court orders otherwise, the referee must make a written report to the court on the matter referred to the referee, annexing the statements given under rule 20.20 (5) and stating: (a) the referee's opinion on the matter, and (b) the referee's reasons for that opinion." "31.11 Production of court documents r 31.11 Unless the court orders otherwise, the registrar must produce to the court any document in the registrar's custody that, by notice in writing, any party to proceedings requests the registrar to produce to the court for the purposes of the proceedings." "33.6 Compliance with subpoena r 33.6 … (4) The addressee must comply with a subpoena to produce: (a) by attending at the date, time and place specified for production and producing the subpoena or a copy of it and the document or thing to the court or to the person authorised to take evidence in the proceeding as permitted by the court, or (b) by delivering or sending the subpoena or a copy of it and the document or thing to the registrar at the address specified for the purpose in the subpoena, so that they are received not less than 2 clear days before the date specified in the subpoena for attendance and production." "34.1 Notice to produce to court r 34.1(1) A party may, by notice served on another party, require the other party to produce to the court, or to any examiner: (a) at any hearing in the proceedings or before any such examiner, or (a1) at any time fixed by the court for the return of subpoenas, or (b) by leave of the court, at some other specified time, any specified document or thing. (2) The other party must comply with a notice to produce: (a) by producing the notice or a copy of it, and the document or thing, to the court, or to the examiner authorised to take evidence in the proceeding as permitted by the court, at the date, time and place specified for production, or (b) by delivering or sending the notice or a copy of it, and the document or thing, to the registrar at the address specified for the purpose in the notice, so that they are received not less than 2 clear days before the date specified in the notice for production."
16. One does not find in the UCPR any usage of the expression "produce in [any] court" to describe the placing of documents in the hands of either a judicial or an administrative officer of a court. The prepositional phrase "to any court" which appears so commonly in the UCPR is used in subs (3)(b) of s 80, with respect to exempting Crime Commission personnel from any requirement "to divulge or communicate to any court any matter or thing etc" (emphasis added).
17. These considerations are in my opinion sufficient to show that subs (3)(a) of s 80, by exempting Crime Commission personnel from being "required to produce in any court any document", is intended to create a wider exemption than that which would arise if this subsection provided that such personnel could not be required to produce to any court any document. The choice of preposition is a conspicuous point of difference from the drafting of the UCPR provisions cited above as examples. It is a choice which must be taken to have been deliberate and to have been intended by Parliament to convey something different from the familiar expression "produce to the court" which is commonplace in civil procedure.
18. The use of the preposition "in" has the effect that the phrase "produce in any court any document" is apt to describe any production of a document under court procedures or pursuant to the control and direction of any court in the exercise of its jurisdiction. That is how I interpret subs 3(a), with the consequence that an order under r 59.9 that the Crime Commission should produce the reasons to the plaintiff would be a requirement imposed upon personnel of the Commission, to whom s 80 applies, that they "produce in [the Supreme Court] any document that has come into the person's possession, custody or control because of, or in the course of the exercise of the person's functions under this Act". By force of subs 3(a) such a requirement "cannot" be imposed. The Court is forbidden from making the order for production of the reasons under r 59.9, as sought by the plaintiff's notice of motion.

Reasons for not exercising the r 59.9 discretionary power

1. The power of a court to order provision to the plaintiff of the reasons under r 59.9 is clearly discretionary. Even if s 80(3) were not an absolute legislative bar to an order for production of reasons for decision of the Crime Commission, the existence of a secrecy provision such as s 80 would be a powerful consideration against making such an order. By force of s 19(1) Crime Commission Act, hearings are held by the Commission "for the purpose of an investigation". Hearings are to be held in private: s 21. The power to issue an examination summons, contained in s 24, is to facilitate the conduct of hearings and thereby to further any investigation to which hearings may relate.
2. It follows that necessarily, in every case where an examination summons is issued, the reason for its issue will relate to an ongoing and incomplete investigation. As can be seen from s 10 Crime Commission Act the Commission's investigations are in all cases concerned with criminal activities. The Commission's reasons for issuing an examination summons will be based upon evidence, intelligence and/or some other basis for suspicion. This is the sort of material which, in performance of its statutory functions, the Commission would need to keep confidential at least until the completion of its investigation and the laying of charges (if that should occur). Section 80, seen in the setting of this Act, has an evident purpose of maintaining secrecy and confidentiality for intelligence and partial information of the kind which the Commission might hold at any point and which might be the basis for it pursuing an investigation through examination of a person summonsed.
3. An order under r 59.9 for the provision of the Commission's reasons for issuing an examination summons would force exposure of this intelligence and other partial information precisely at the point where s 80 would be engaged to preserve its secrecy. These considerations are discretionary factors which would in most cases tell very strongly against the Court making an order under r 59.9. In the present case having examined the reasons which are comprised in Confidential Exhibit 2, I find these considerations to be of overwhelming weight against making the order for which the plaintiff has applied.
4. A further consideration relevant to the exercise of the discretion is the lack of any useful purpose to be served by ordering provision of the reasons to the plaintiff. The final relief sought in the summons is not such as could be supported by anything which may appear in the reasons.
5. The summons seeks, at para 1, an order that the plaintiff be referred to by a pseudonym. This has been granted. Paragraph 2 is in these terms: "2. A declaration pursuant to s75 Supreme Court Act 1970 (NSW) that the Defendant was obliged to provide to the Plaintiff reasons for its decision to issue a summons requiring him to attend and provide evidence pursuant to s24 Crime Commission Act 2002 (NSW)."
6. There is no basis for this relief to be granted substantively. An administrative body is not under any general duty at common law to give reasons for its decisions: Public Service Board of NSW v Osmond [1986] HCA 7; (1986) 159 CLR 656. The obtaining of the Commission's reasons by the plaintiff through a discretionary order under r 59.9 could have no possible bearing upon the final determination of the merits of the plaintiff's claim for a declaration that the Commissioner was obliged to provide these reasons to it. An order under r 59.9 in exercise of the Court's discretion would pre-empt the final determination on the merits of this claim for relief.
7. I consider that that would be an entirely wrong and unjustified exercise of discretion in circumstances where the Crime Commission has a sound basis for invoking the principle in Public Service Board of NSW v Osmond. Namely, the considerations outlined in [27] - [29]. There is no contest by the defendant that it has not supplied the reasons. The plaintiff will succeed or fail in its application for order 2 according to the outcome of legal argument about whether reasons were required to be given. The content of the reasons does not need to be seen by the plaintiff in order to run that argument.
8. Paragraph 3 of the relief sought by the plaintiff on a final basis is as follows: "3. A declaration pursuant to s75 Supreme Court Act 1970 (NSW) that the summons does not comply with s24(4) Crime Commission Act 2002 (NSW)."
9. The summons includes a statement of the grounds upon which the various heads of relief are claimed. The sole ground for para 3 is following: "The summons does not provide adequate information as to the matters in relation to which it is proposed to question the Plaintiff as required by s 24(4) Crime Commission Act 2002 (NSW)."
10. Whether or not the plaintiff is entitled to a declaration that the examination summons is non-compliant with s 24(4) will turn upon the Court's assessment of the description of "the general nature of the matters about which the Commission intends to question" the plaintiff as set out on the face of the summons. The following description of the subject matter of the proposed questioning is given on the first page of the summons: "The general nature of the matters about which the Commission intends to question you is your knowledge of the activities supporting terrorist groups and terrorism related activities of [four named persons] and their associates."
11. This notification is to be measured against the requirements of s 24(4) as follows: "(4) The summons must set out, so far as is reasonably practicable, the general nature of the matters in relation to which the Commission intends to question the person unless the Commission is satisfied that, in the particular circumstances of an investigation to which the hearing relates, it would prejudice the effectiveness of the investigation for the summons to do so."
12. It would seem a very difficult task for the plaintiff to persuade the Court that the description which appears on the face of the summons to the plaintiff does not satisfy s 24(4). This part of the case involves a simple comparison of the wording of the examination summons with its statutory criterion. The Commission's reasons for issue are irrelevant to that comparison.
13. Lastly, the summons claims these orders: "4. A declaration pursuant to s75 Supreme Court Act 1970 (NSW) that the Plaintiff was entitled to an opportunity to be heard in relation to the proposed questioning of him, prior to the issuance of the summons for him to attend. 5. An order in the nature of certiorari pursuant to s69 Supreme Court Act 1970 (NSW) removing the summons to this Honourable Court and setting it aside."
14. The grounds pleaded by the plaintiff in support of these two heads of relief are as follows: "1. The Defendant failed to afford the Plaintiff procedural fairness in not providing him with an opportunity to be heard, as to why he should not be summonsed, before summonsing him to attend and provide evidence. 2. The Defendant failed to afford the Plaintiff procedural fairness in not providing him with the statement of reasons as to why the decision to issue the summons was made and what matters were considered."
15. As to Ground 1, at the final hearing of the plaintiff's summons the question of whether the Commission was bound to accord the plaintiff procedural fairness in relation to its decision to summons him and the extent of the procedural fairness, if any, required to be accorded will turn upon application of the threshold test laid down in Kioa v West (1985) 159 CLR 550. In the words of Sir Anthony Mason at 159 CLR 582: "It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it [citations omitted]. The reference to "right or interest" in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests."
16. His Honour said further and to the same effect, at 584: "The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary intention. … But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. … Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Aust Pty Ltd v FC of T [(1963) 113 CLR 475], Kitto J pointed out [at pp 503-4] that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on 'the particular statutory framework'. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting [citations omitted]."
17. Brennan J endorsed a threshold test expressed in terms to the same practical effect, albeit that his Honour founded this upon implication from statute of an obligation to accord procedural fairness, rather than imposition of that obligation by the common law. His Honour said at 610: "Observance of the principles of natural justice is a condition attached to the power whose exercise it governs. There is no free-standing common law right to be accorded natural justice by the repository of a statutory power."
18. Brennan J further said at 612: "Two distinct but closely related questions can be perceived in the cases relating to the exercise of a statutory power: the first, or threshold, question is whether the exercise of the power is conditioned upon observance of the principles of natural justice; the second question, arising when the exercise of the power is so conditioned, is what the principles of natural justice require in the particular circumstances."
19. In order to establish, at the final hearing of the plaintiff's claim, that the Crime Commission was bound to accord him procedural fairness to the extent of hearing him before issuing the summons, the plaintiff will have to identify some affectation of his interests, in the sense referred to by Sir Anthony Mason in the passages quoted above. In the evidence and arguments presented on hearing of the notice of motion I have not discerned any interest of the plaintiff which would be affected in such a way as to entitle him to procedural fairness. Merely being required to answer questions in a hearing before the Commission does not appear to meet this threshold requirement. I am not aware of any authority for the proposition that being required to give evidence, in the setting of this or similar legislation, relevantly affects the examinee's rights in the manner necessary to attract an obligation of the decision maker to accord procedural fairness before requiring the examinee to attend. Further the very nature of the legislation and the limited express provisions for review of Commission decisions (ss 33 and 38) combine to indicate a legislative intention to exclude any obligation of procedural fairness in connection with issuing an examination summons.
20. In any event, the reasons upon which an administrative body arrives at its decision can have no possible bearing upon the question whether or not procedural fairness should have been accorded or, if so, whether such fairness should have included an opportunity for the plaintiff to be heard. The plaintiff's contention that the Commission has erred in deciding to issue the examination summons without hearing him in opposition cannot be affected one way or another by the making of an order under r 59.9. The right to procedural fairness, if it exists, would spring from the nature of the decision which was made and would be unaffected by the reasons for making it.
21. The same applies to Ground 2 quoted at [40] above. If the plaintiff was entitled to procedural fairness and if this required the provision to him of a statement of reasons for the decision, that would emerge from consideration of the Crime Commission Act and the tests in Kioa v West. The plaintiff's contention will not be affected, for or against, by anything that may appear in the reasons which the Commission actually adopted and acted upon. Again, it would be a wrong exercise of the discretion conferred upon the Court by r 59.9 to pre-empt the final determination of this highly contentious ground by ordering provision of the reasons to the plaintiff upon an interlocutory application.

Public interest immunity

1. The plaintiff's claim for public interest immunity in respect of the reasons appears to me to be governed by s 130 Evidence Act 1995 (NSW). Section 130 appears in Div 3 of Pt 3.10 of that Act. Section 131A, in Div 4, provides as follows, (extracted so far as relevant): "131A Application of Part to preliminary proceedings of courts (1) If: (a) a person is required by a disclosure requirement … 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 … 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 … 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."
2. In s 131A(2) Evidence Act 1995 the definition of "disclosure requirement" is expressed as including items (a) - (f). Although an order under r 59.9 is not within any of those items, I consider that such an order would be "a process or order of a court that requires the disclosure of information or a document".
3. Therefore, applying sub s (1) of s 131A one looks to see whether this "disclosure requirement", applied to the reasons comprised in Confidential Exhibit 2 on this notice of motion, "would result in the disclosure of a … document or its contents or other information of a kind referred to in Div … 3". Relevantly for present purposes, that requires consideration of whether the Commission's reasons would fall within s 130. If they would then, given that the Commission objects to providing the document, "the Court must determine the objection by applying the provisions of [Part 3.10] (other than sections 123 and 128) with any necessary modifications as if the objection to … producing the document were an objection to the giving or adducing of evidence": s 131A(1).
4. The relevant sub sections of s 130 are as follows: "Exclusion of evidence of matters of state (1) 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. … (4) 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 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. (5) 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 a defendant or the prosecutor, (c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding, (d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication, (e) whether the substance of the information or document has already been published, (f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant - whether the direction is to be made subject to the condition that the prosecution be stayed."
5. Having examined the Commission's reasons in Confidential Exhibit 2 and considered a confidential affidavit of Robert B Inkster sworn 20 November 2015 in support of the public interest immunity claim (Confidential Exhibit 1 on the notice of motion), I am satisfied that if I were to make the order sought by the plaintiff for production of the reasons this would prejudice the investigation of an offence within the meaning of s 130(4)(c). I am further satisfied that other subparagraphs of s 130(4) would be engaged. I will refrain from identifying them in order to avoid thereby implicitly revealing any aspect of the nature of the information in the reasons.
6. It follows that, within the meaning of s 130, the subject reasons are "a document that relates to matters of state". I am therefore required to balance the public interest in ordering production of such a document to the plaintiff against the public interest in "preserving secrecy or confidentiality in relation to the information or document": see s 130(1). To undertake this balancing exercise I have regard to the subparagraphs of s 130(5).
7. For reasons I have given at [30] to [47] above, I do not see that the reasons are of any importance at all to the plaintiff's substantive claims for relief or to the grounds upon which those claims are pursued. On the other hand, I consider that the likely effect of ordering production of these reasons would be significantly adverse to the effective discharge by the Crime Commission of its responsibilities. The matters being investigated by the Commission, as disclosed on the face of the summons and quoted at [35] above, include possible support of terrorist groups and of terrorist related activities.
8. The importance to public safety and national security of conducting an investigation of that nature without the interference of being obliged to disclose intelligence and partial information before the investigation is complete is of obvious and substantial importance. It would outweigh the public interest in disclosure for the purpose of these proceedings even if the reasons were significantly material to the litigation of the plaintiff's summons. As it happens, they are not material to the substantive proceeding and the balance is all one way.
9. If I am wrong in my analysis of s 131A and s 130 Evidence Act 1995 and if the claim for public interest immunity ought properly be decided not under that Act but according to common law principles, the same considerations would be relevant, the same balancing exercise would have to be undertaken and the outcome would be the same: Young v Quin (1985) 59 ALR 225 at 234 - 237; Beneficial Finance v Australian Federal Police Commissioner (1991) 52 A Crim R 423; 31 FCR 523 at 550 - 553; Alister v R (1984) 154 CLR 404.

Conclusion

1. The defendants have sought a specified sum costs order pursuant to s 98(4)(c) Civil Procedure Act 2005 and an order pursuant to r 42.7(2) that their costs under such order be paid forthwith. I consider this an appropriate case for making orders of that kind. The plaintiff's application for an order under r 59.9 in relation to the Crime Commission's reasons was extremely ambitious. It should have been seen before the notice of motion was issued that it had negligible prospects of success.
2. Where the Commission is undertaking an ongoing investigation and furtherance of that investigation is clearly the purpose of an examination summons being issued, the matters taken into account by the Commission in deciding to issue the summons would invariably be highly sensitive and confidential. The plaintiff's application to obtain the Commission's reasons was in effect an endeavour to gain access to a summary of the Commission's intelligence holdings and the results of its investigation to date. Prior to the plaintiff filing his notice of motion he was informed in correspondence that public interest immunity was claimed. In the circumstances it was inevitable that that claim would be upheld. I consider that the plaintiff should be required forthwith to pay the defendant's costs of this unmeritorious and improbable application.
3. In arriving at a specified sum I have considered the affidavit of Ms S M Johnson sworn 2 December 2015. Ms Johnson has deposed that total costs incurred on the motion if assessed by a costs assessor on a party/party basis, would be between 65% - 80% of $10,456 exclusive of GST. That is, within the range of $6,796.40 - $8,364.80 exc GST. The rates at which this has been calculated and the number of hours allocated to the work appear to me to be entirely reasonable. I accept that evidence and will award an amount rounded down to $8,000 exclusive of GST, to be paid within 28 days.
4. For these reasons the orders of the court will be 1. The plaintiff's notice of motion filed 16 October 2015 is dismissed. 2. The plaintiff is to pay the defendant's costs of the notice of motion. 3. The costs payable under Order 2 are fixed at $8,800 inclusive of $800 in GST pursuant to s 98(4)(c) Civil Procedure Act 2005. 4. The plaintiff is to pay the costs awarded under Order 3 within 28 days.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2015