Sportsbet Pty Ltd v Harness Racing Victoria

Introduction 1 This matter has already been the subject of previous interlocutory rulings, in which the background to it appears. I shall not repeat that background: see Sportsbet Pty Ltd v Harness Racing Victoria [2009] FCA 1471; Sportsbet Pty Ltd v Harness Racing Victoria (No 2) [2010] FCA 952; Sportsbet Pty Ltd v Harness Racing Victoria (No 3) [2010] FCA 1420. 2 The present issues concern the extent to which the State of Victoria (the State) as the second respondent should make available for inspection certain documents which it has discovered in its list of documents of 13 December 2010 and over which it has claimed a privilege from production and inspection on the grounds of public interest immunity or Parliamentary privilege. There is a related interlocutory issue in relation to a document produced under subpoena by the Allen Consulting Group Pty Ltd (the Allen document), in respect of which the State also claims that it should not be available for inspection also on the ground that it is privileged from such inspection on the ground of public interest immunity. Public interest immunity is capable of applying to a document produced from the hands of a private party, if that interest nevertheless resides in the State: Australian National Airlines Commission v The Commonwealth (1975) 132 CLR 582 per Mason J at 591. 3 I have had the benefit of very helpful submissions from senior counsel for both the State and Sportsbet Pty Ltd (Sportsbet). The general principles applicable to a claim for public interest immunity at this stage of the proceeding are the common law principles: Mann v Carnell (1999) 201 CLR 1; Queanbeyan City Council v ACTEW Corporation Ltd (2008) 253 ALR 121 at [7] per Stone J. Those principles are conveniently set out in the reasons for judgment of McLellan CJ in Murrumbidgee Ground-Water Preservation Association v Minister for Natural Resources [2003] NSWLEC 322 at [19], and by Jagot J in Betfair Pty Ltd v Racing New South Wales (No 7) (2009) 181 FCR 66. In determining the claim for public interest immunity, the Court may inspect the documents in issue, although as a starting point it is not routinely done. As was said in Commonwealth v Northern Land Council (1991) 30 FCR 1 at 36-37, the Court should conduct a "kind of anticipatory balancing exercise" to decide whether a document should be inspected. 4 For the purpose of considering the matters in issue, there are three steps. First it is necessary to decide whether there is a risk that production and inspection of the documents in issue would be injurious to the public interest. Secondly, it is necessary to determine whether there is a public interest in Sportsbet having access to those documents; namely in the interest in the fair administration of justice. In particular, one must have regard to the circumstances in which discovery and inspection takes place, that is with the implied undertaking attached to the benefit of inspecting the documents discovered in a proceeding and the limited use to which any information obtained by inspecting such material may be put. Ultimately, the third step is whether the public interest in the fair administration of justice outweighs the desirability that the information not be disclosed. That is, there is a balancing of two public interests: the harm which may be caused by disclosure and the interest in ensuring that justice can be effectively administered: see Sankey v Whitlam (1978) 142 CLR 1. 5 It is accepted that documents that actually record the deliberations of Cabinet are more likely to attract the immunity than documents prepared outside of Cabinet, such as submissions or reports: Commonwealth v Northern Land Council (1993) 176 CLR 604. The balancing exercise, which is the third step, where the Court is required to undertake a balancing process between the public interest in the administration of justice and the public interest involved in support of the immunity, is discussed by the Full Court in The Commonwealth v Northern Land Council [1991] 30 FCR 1 at 38. In that case the following factors for consideration were identified per Black CJ, Gummow and French JJ: 1. where the contents of the documents are relied upon, the interests affected by their disclosure eg national security, relationships with foreign governments and unfair prejudice to other parties by disclosure of confidential information; where the impact of disclosure on the public interest is peculiarly within the knowledge of the Executive, its contentions will be given particular weight; 2. where the class of documents is invoked, the public interest which immunity for the class is said to protect eg political conventions and governmental processes; in this connection the importance of the convention of collective responsibility and the confidentiality required to support it, particularly in areas of current political debate, will be accorded a high degree of respect; 3. the extent to which the interests referred to have become attenuated by the passage of time or the occurrence of intervening events since the matters contained in the documents or the documents themselves came into existence; 4. the seriousness of the issues in relation to which production is sought eg innocence of a criminal charge or governmental misconduct bearing upon the case; 5. the likelihood that production of the documents will affect the outcome of the case; 6. the likelihood of injustice if the documents are not produced. 6 The State has provided a list of the 131 discovered documents over which it initially sought to claim that the documents should not be available for inspection on the ground of public interest immunity. That list was broken into two sections: "Specific Claims" comprising 74 documents and "Class Claim" comprising 57 documents and within each section there were subheadings to describe a group of specified documents. In addition, by the two final submissions, the number of documents over which public interest immunity was claimed had reduced somewhat. 7 The "Specific Claims" involved 43 documents described broadly as "Documents from the Office for Racing (Department of Justice)", three documents described as "Documents from the Office of the Minister for Racing", seven documents described as "Documents from the Department of Premier and Cabinet (and Office of the Chief Parliamentary Counsel)", and one document described as "Document from the Office for Racing (Department of Justice)" previously listed under "Class Claim".