PROCEDURE - civil - pre-trial discovery - public interest immunity - principles to be applied - Commonwealth v Northern Land Council [1993] HCA 24
176 CLR 604 considered.
Source
Original judgment source is linked above.
Catchwords
PROCEDURE - civil - pre-trial discovery - public interest immunity - principles to be applied - Commonwealth v Northern Land Council [1993] HCA 24176 CLR 604 considered.
Judgment (37 paragraphs)
[1]
v Wood [2006] FCA 60; 148 FCR 276
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QB 55
Deputy Commissioner of Taxation v State Bank of New South Wales [1992] HCA 6; 174 CLR 219
Eastman v The Queen (1997) 76 FCR 9
Egan v Chadwick [1999] NSWCA 176; 46 NSWLR 563
Ex parte Workers' Compensation Board of Queensland [1983] 1 Qd R 450
Harbours Corporation of Queensland v Vessey Chemicals Pty Ltd (1986) 12 FCR 60
Hooker Corporation Ltd v Darling Harbour Authority (1987) 14 ALD 110
Inglis v Commonwealth Trading Bank of Australia [1969] HCA 44; 119 CLR 334
Mulley v Manifold [1959] HCA 23; 103 CLR 341
New South Wales Commissioner of Police v Nationwide News Pty Ltd [2007] NSWCA 366; 70 NSWLR 643
North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1080
Province of Bombay v Municipal Corporation of Bombay [1947] AC 58
R v Sutton [1908] HCA 26; 5 CLR 789
Robinson v South Australia (No 2) [1931] AC 704
RP Data v Western Australian Land Information Authority [2010] FCA 922; 188
FCR 378
Sankey v Whitlam [1978] HCA 43; 142 CLR 1
Sportsbet Pty Ltd v New South Wales (No 3) [2009] FCA 1283; 262 ALR 27
State Bank of New South Wales v Commonwealth Savings Bank of Australia [1986] HCA 62; 161 CLR 639
Victoria v Brazel [2008] VSCA 37; 19 VR 553
Texts Cited: J D Heydon, Cross on Evidence (LexisNexis Butterworths, 8th Australian ed, 2010)
P W Hogg, Liability of the Crown (LawBook Co, 2nd ed, 1989)
H E Renfree, The Executive Power of the Commonwealth of Australia (Legal Books, 1984)
Category: Principal judgment
Parties: State of New South Wales (Appellant/First Cross Respondent)
Public Transport Ticketing Corporation ACN 57 443 320 873 (First Respondent/Second Cross Respondent)
Integrated Transit Solutions Limited ACN 19 085 661 865 (Second Respondent/First Cross Claimant)
ERG Limited ABN 23 009 112 725 (Third Respondent/Second Cross Claimant)
Representation: Counsel:
Mr R Lancaster SC, Ms C Spruce (Appellant)
Mr S Free (First Respondent)
Mr W G Muddle SC, Mr J A Arnott (Second & Third Respondents)
Solicitors:
Crown Solicitor's Office (Appellant)
Allens Arthur Robinson (First Respondent/Second Cross Respondent)
Norton Rose (Second & Third Respondents/ First Cross Claimant, Second Cross Claimant)
File Number(s): 2008/290313
Decision under appeal Citation: Public Transport Ticketing Corporation v Integrated Transit Solutions & Anor [2010] NSWSC 607
Date of Decision: 2010-06-08 00:00:00
Before: Einstein J
File Number(s): 2008/290313
[2]
Judgment
1ALLSOP P: Before the Court are an application and cross-application for leave to appeal from procedural rulings by the primary judge (Einstein J) concerning claims for public interest immunity by the State of New South Wales in respect of documents discovered by the Public Transport Ticketing Corporation ("the PTTC") in litigation in the Commercial List against Integrated Transit Solutions Limited and ERG Limited (to which entities I will refer individually and collectively by the singular "ERG").
2The application (brought by the State) and cross-application (brought by ERG) for leave to appeal were heard concurrently with the appeals, should leave be granted. The argument that was heard on 14 December 2010 was limited (in significant part, by reasons of pressure of time) to what were referred to as two "tiers" of five categories of documents, which I will explain in due course. It was thought that orders and reasons in relation to what were said to be documents attracting the immunity at the two highest levels or tiers and the reasons therefor would assist in the overall resolution of the many such claims in the case.
3A separate question was also heard concerning one document that was otherwise contained within one of the relevant categories, but which had been accidentally provided to ERG consequent upon a subpoena being answered by a third party.
4The orders that I would make are that leave be granted to appeal and cross-appeal, the orders of the primary judge be set aside and the matter be stood over to a date to be fixed for the making of orders on the appeal and separate question that are consistent with these reasons. Broadly speaking I would order disclosure (subject to any claims for legal professional privilege) of a significant number of documents and parts of documents that relate wholly or substantially to this contract and the dispute arising from its performance.
[3]
The litigation in the Commercial List
5The PTTC described the nature of the dispute between it and ERG (which commenced in 2008) in its Commercial List Statement as a claim for damages (beyond the liquidated damages under the relevant contract that had already been recovered through the calling up of security) for the losses said to have been suffered consequent upon the PTTC's termination of a contract for the designing, building and installation of an integrated ticketing and fare payment system for public transport in the greater Sydney area. Such termination was said to have been justified by the alleged serious breaches of contract, and delay in performance, by ERG.
6In its Commercial List Response, ERG said that the PTTC was not entitled to terminate the contract because (amongst other reasons) it did not act reasonably or in good faith in refusing to accept the remedial programme put forward by ERG to deal with what were asserted by the PTTC to be events of default. ERG claims that the PTTC's purported termination was in fact a repudiation of the contract and that it (ERG) accepted the PTTC's repudiation as terminating the contract. The precise details and context of these assertions were not made clear in argument. They are largely unnecessary to understand for present purposes, save that it is necessary to appreciate that it will be central to the resolution of this case to understand the reasons for the PTTC's termination. Another group of allegations embedded within ERG's defence refer to the failure of the PTTC to procure sufficient engagement and support of transport operations including Railcorp, the State Transit Authority and the Bus and Coach Association.
7The primary judge set out other relevant issues in [11] of his reasons.
8The State is not a party to the litigation. However, by further amended notice of motion dated 13 April 2010, the State sought orders that the PTTC be excused from making available for inspection by ERG or their lawyers documents divided into 14 categories that had been discovered as relevant by the PTTC on the ground that the documents were subject to a legitimate claim for public interest immunity.
9It is appropriate to note at this point that under the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") thereunder the conception of relevance for the purposes of disclosure in civil litigation is no longer the 19 th century "train (or chain) of enquiry" or " Peruvian Guano " test: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QB 55 at 63; and Mulley v Manifold [1959] HCA 23; 103 CLR 341. Rather, relevance is to be judged by reference to the criteria in UCPR Pt 21 r 21.1(2) as relevance to a fact in issue in that the document or its contents could rationally affect the assessment of the probability of the existence of a fact in issue (other than by relating solely to the credibility of a witness). I will assume that all documents with which I will deal meet that test.
10The 14 categories (A - N) were as follows:
A. Draft speaking notes prepared for Ministers to use in Cabinet;
B. Draft advices prepared by Treasury for the Treasurer and for the Cabinet Standing Committee on the Budget ("Budget Cabinet Committee") in relation to matters being put before the Budget Cabinet Committee for decision;
C. There is no category C;
D. Decisions of the Budget Cabinet Committee;
E. Draft Minutes of the Budget Cabinet Committee and related correspondence;
F. There is no category F;
G. Documents that disclose the deliberations of the Budget Cabinet Committee;
H. Briefing notes prepared at the request of the Department of Premier and Cabinet for incoming Premiers and incoming Governments;
I. Draft answers to Parliamentary questions on notice;
J. Draft house folder notes;
K. Correspondence between the Minister and a Director-General on a policy issue;
L. Correspondence and external consultants' reports prepared to assist in the preparation of advice for Cabinet on an important policy issue;
M. Documents prepared for a steering group established by Cabinet;
N. Other forms of Cabinet advice.
11The argument before this Court concerned categories D, G, A, E and N. Categories D and G were said to be the "first tier" of documents most strongly and evidently attracting the immunity and categories A, E and N were said to be the "second tier" of documents next most strongly and evidently attracting the immunity.
12On the motion before the primary judge, the State relied on affidavits of three people: Mr Paul Miller (Acting Deputy Director-General (General Counsel) of the New South Wales Department of Premier and Cabinet), Mr Andrew Nicholls (Acting Deputy Director-General of the New South Wales Department of Transport and Infrastructure) and Ms Joanna Quilty (Deputy Director-General of the New South Wales Department of Transport and Infrastructure). The relevant documents were tendered as confidential exhibits.
[4]
The approach and error of the primary judge
13After setting out ERG's submissions, the primary judge, approaching the matter by reference to the Evidence Act 1995 (NSW), s 130 and to some of the leading cases at common law, turned to the evidence led by the State in support of its claim. His Honour concluded (at [43] of his reasons) that the evidence of Mr Miller and Mr Nicholls:
"[43] ... amounted to little more than a confirmation that they regarded those documents as falling within the particular categories and appropriate for a claim for Crown immunity. It is however quite clear that there was no evidence of a consistent application of principle for the selection of documents which attracted immunity."
14His Honour said at [44]-[46] of his reasons:
"[44] When taken in cross-examination to examples of particular documents in respect of which there was originally a claim to Crown immunity which was substantially reduced, the evidence in chief was simply silent as to the change of position and as to any criteria or consideration applied in the abandonment of the claim earlier made. One only example in respect of the cross-examination of Mr Miller concerned category F was that he was no more than the notional decision maker but he only conveyed the instruction after it had been approved by Cabinet and he would not have done so had Cabinet not approve [ sic ] the release of the particular documents.
[45] In truth the materials put forward by the State's witnesses fell far short of discharging the requirement that there be some form of transparency in relation to how there had been determined from amongst the many documents discovered those to be reviewed for public interest immunity.
[46] It was important for the Court to have before it from the State, evidence upon which the court could rely in order to be in a position to understand what were the criteria by reference to which it came to be contended that particular documents were described as Cabinet minutes. To my mind it became clear from the above-described cross-examination that the proponents had insufficient knowledge of that process [and insufficient knowledge of the issues in the proceedings] to satisfy the court as to what the above-described criteria were."
15Having criticised the evidence in this way, the primary judge concluded that the balancing exercise contemplated by s 130 favoured inspection. Then, however, his Honour resorted to the expedient of allowing the claim to immunity only if the document had stamped on it "Cabinet in Confidence" and not allowing it if it did not. This was, with respect, an inadequate and arbitrary approach to a substantive question of law and fact about which both ERG and the State complain. Rather than remit the matter to be dealt with according to law, both sides urged us to decide the question, the appeal being by way of rehearing under the Supreme Court Act 1970 (NSW), s 75A. As to the nature of appellate review in respect of a decision as to the immunity see Victoria v Brazel [2008] VSCA 37; 19 VR 553 at [38]-[43] and Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123; 169 FCR 227 at 230-232 [11]-[21], but cf New South Wales Commissioner of Police v Nationwide News Pty Ltd [2007] NSWCA 366; 70 NSWLR 643 at 646 [26]. Given the error of the primary judge it is unnecessary to embark upon any analysis of what may be conflicting approaches in these cases.
[5]
The statutory framework
16Before addressing the issues argued as to public interest immunity, it is appropriate to commence with an understanding and appreciation of the PTTC under and pursuant to the Transport Administration Act 1988 (NSW) ("the TA Act"). The TA Act has purposes going well beyond the PTTC. Various Parts of the TA Act dealt with Rail Corporation New South Wales (Pt 2), the Transport Infrastructure Development Corporation (Pt 2A), the Rail Infrastructure Corporation (Pt 2B), the State Transit Authority (Pt 3), Sydney Ferries (Pt 3A), the Independent Transport Safety and Reliability Regulator (Pt 4A), the Transport Advisory Group (Pt 5), the Roads and Traffic Authority (Pt 6) and Sydney Metro (Pt 6A). Part 3B dealt with the PTTC.
17Until 1 July 2010, with the introduction of the Transport Administration Amendment Act 2010 (NSW) ("the 2010 Act"), the TA Act relevantly provided as follows. By s 35R, the PTTC was constituted a corporation, and was a statutory body "representing the Crown" and had "the status, privileges and immunities of the Crown".
18Section 35S set out the objectives of the PTTC, dividing them between "principal" and "other":
"(1) The principal objectives of the Public Transport Ticketing Corporation are:
(a) to provide ticketing and fare payment services to public transport operators in the State, and
(b) to promote and facilitate the integration of ticketing products and fare payment systems for public transport in the State, in an efficient, effective and financially responsible manner.
(2) The other objectives of the Public Transport Ticketing Corporation are as follows:
(a) to be a successful business and, to that end:
(i) to operate at least as efficiently as any comparable business, and
(ii) to maximise the net worth of the State's investment in the Corporation,
(b) to exhibit a sense of social responsibility by having regard to the interests of the community in which it operates,
(c) where its activities affect the environment, to conduct its operations in compliance with the principles of ecologically sustainable development contained in section 6(2) of the Protection of the Environment Administration Act 1991 ,
(d) to exhibit a sense of responsibility towards regional development and decentralisation in the way in which it operates.
(3) The other objectives of the Public Transport Ticketing Corporation are of equal importance, but are not as important as the principal objectives of the Corporation."
19Section 35T set out the functions of the PTTC as follows:
"(1) The principal functions of the Public Transport Ticketing Corporation are:
(a) to establish and manage a ticketing and fare payment system for public transport passengers and participating public transport operators in the State, and
(b) to control and manage any funds within the ticketing and fare payment system that represent unused prepaid fares.
(2) Without limiting any other functions conferred or imposed on it, the Public Transport Ticketing Corporation may conduct any business related to the operation of its ticketing and fare payment system and for that purpose use any property or the services of any staff of the Corporation.
(3) The Public Transport Ticketing Corporation has such other functions as are conferred or imposed on it by or under this or any other Act or law.
(4) The Public Transport Ticketing Corporation may exercise its functions within or outside New South Wales."
20The management of the PTTC was provided for by s 35U. A board was constituted and comprised of the Chief Executive Officer and between three and seven nominees of the Minister (s 35U(1) and (2)). Part 1 of Sch 10 of the TA Act provided for the constitution and procedure of the board. The board had the functions of determining the policies of the PTTC (s 35V). The affairs of the PTTC were to be managed and controlled by the CEO in accordance with the policies of the board (s 35X). Ministerial control of the PTTC was provided for by s 35Y which was in the following terms:
"(1) The Minister may give the Public Transport Ticketing Corporation Board written directions in relation to the exercise of the Public Transport Ticketing Corporation's functions.
(2) Subject to this section, the Board and the Chief Executive Officer of the Public Transport Ticketing Corporation must ensure that the Public Transport Ticketing Corporation complies with any such direction.
(3) However, the Minister may make a direction under this section that has a significant financial consequence for the Public Transport Ticketing Corporation only if the Minister has obtained the concurrence of the Treasurer."
21The PTTC was obliged to supply the Minister with information relating to its activities as required and to keep the Minister informed "of the general conduct of its activities, and of any significant developments in its activities".
22The relevant amendments made to the TA Act as at 1 July 2010 under the 2010 Act omitted Pt 3B, but continued the PTTC as constituted by s 35R and, by cl 2(3) of Sch 9 inserted into the TA Act by the 2010 Act, Sch 5, made the PTTC "a NSW Government agency", a phrase defined by the Interpretation Act 1987 (NSW), s 13A as a body that "has the status, privileges and immunities of the Crown". The objectives of the PTTC were set out in cl 3(1) of Sch 9 of the TA Act introduced by the 2010 Act, Sch 5, and, in effect, placed it in run-off:
"(1) The objectives of the Public Transport Ticketing Corporation are as follows:
(a) to manage its assets, rights and liabilities effectively and responsibly,
(b) to minimise the risk exposure of the State arising from its activities,
(c) to achieve the efficient and timely winding up of residual business activities."
23The affairs of the PTTC were to be managed by the Director-General: cl 4(1) of Sch 9 of the TA Act introduced by the 2010 Act, Sch 5 (and see also the 2010 Act, s 3C dealing with the functions of the Director-General).
[6]
The correct legal regime under which to decide the claims for immunity
24The primary judge addressed the question by reference to the Evidence Act , ss 130 and 131A. The State argued at the hearing of the appeal (but not in its first written submissions) that this was an error and that his Honour should have addressed the question by reference to the common law. Nevertheless, it was submitted that there was little difference between the two regimes. Notwithstanding this last submission, it is necessary for this Court to decide upon the correct legal framework by reference to which to assess the rights and immunity in question.
25Sections 130 and 131A are in the following terms:
"130 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.
(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.
(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 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.
(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.
(6) A reference in this section to a State includes a reference to a Territory.
...
131A Application of Division to preliminary proceedings of courts
(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, 1A 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."
26The State submitted that the terms of s 131A(1) were not engaged. That was so, it was submitted, because the State, which had the carriage of the upholding of the immunity was not a person subject to a disclosure requirement who objects to giving that information or document. The PTTC is the person subject to the disclosure requirement; all the documents are discovered by it and are within its custody, power and control. The State is seeking to rely upon the immunity, not the PTTC, and the State is not subject to the disclosure requirements.
27The PTTC withheld from inspection documents which it apprehended may be the subject of a claim for public interest immunity. The State filed a motion in the proceedings (without objection by ERG) for the purpose of making the claims for public interest immunity. The PTTC submitted (in a carefully worded submission) that it had a "general preference that all relevant, non-privileged material be made available to the parties for use in the proceedings, while recognising that the forensic interests of the parties must yield to the principles of public interest immunity. [It] defers to the Sate and does not wish to be heard [on the immunity issues]." (Outline of submissions dated 11 October 2010.) The State, not the PTTC, had carriage of the motion propounding the immunity.
28The State submitted first, that the PTTC was not the State, although it was a statutory body representing and having the status of the Crown: TA Act, s 35R(2) and now "a NSW Government agency": cl 2(3) of Sch 9 introduced by the 2010 Act, Sch 5; and secondly, that the State (or the Crown) cannot be described as "a person" as a matter of statutory interpretation.
29ERG submitted that at the time the PTTC was required to disclose the documents it was a statutory body representing the Crown and so the State and the PTTC were the same person. The position since 1 July 2010 is, it was submitted, even clearer. So, it was submitted, the State was claiming the immunity and it (through the PTTC) was required to produce the documents.
30That the PTTC has the status of the Crown does not deny its character as a corporation constituted by the TA Act, s 35R. One aspect of that character is its separateness as a corporate personality. As a corporation constituted by s 35R, the PTTC was continued by the 2010 Act, cl 2(1) of Sch 9, introduced into the TA Act by the 2010 Act, Sch 5. For the purposes of the Australian Constitution , s 75(iv) or s 114 or of the Judiciary Act 1903 (Cth), s 38, the PTTC may well be the State: State Bank of New South Wales v Commonwealth Savings Bank of Australia [1986] HCA 62; 161 CLR 639; Deputy Commissioner of Taxation v State Bank of New South Wales [1992] HCA 6; 174 CLR 219; Inglis v Commonwealth Trading Bank of Australia [1969] HCA 44; 119 CLR 334. Such provisions are not to be defeated or avoided by the precise corporate form in which the State conducts its affairs. That, however, does not mean that the PTTC does not have a separate personality as a corporation, distinct from the polity of the State of New South Wales: Commonwealth v Silverton Ltd (1997) 130 ACTR I at 13-18; Ex parte Workers' Compensation Board of Queensland [1983] 1 Qd R 450. In the last two cases, such separateness of the entity permitted agencies of the one polity to sue each other.
31It is unnecessary to discuss the manner in which the dictum that the Crown is "one and indivisible" has been necessarily varied by the political exigencies of Empire and Federation: see P W Hogg, Liability of the Crown (LawBook Co, 2 nd ed, 1989) at pp 10-12 and H E Renfree, The Executive Power of the Commonwealth of Australia (Legal Books, 1984) at pp 51-57. It is sufficient to note that the different emanations of the Crown in the right of different polities are different bodies politic: cf R v Sutton [1908] HCA 26; 5 CLR 789; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; 28 CLR 129; Commonwealth v Cigamatic Pty Ltd (In Liquidation) [1962] HCA 40; 108 CLR 372.
32The issue here is one of the separateness of juristic person between the body politic of New South Wales and a corporation the creature of statute. The TA Act says the PTTC is a corporation; hence it is a distinct entity. The 2010 Act continued it as such. The PTTC (albeit a corporation) is "a person ... required by a disclosure requirement [as defined in s 131A(2)] ... to produce a document". However, it does not "object to ... providing that document". Its carefully drafted position does not amount to such objection. The State objects. Assuming for the moment that the State (being the body politic of New South Wales) is "a person" for the purposes of s 131A(1)(a) (which, for the reasons set out below, it is), it is not a person who is required, by pre-trial discovery as the relevant disclosure requirement for s 131A(2), to produce the documents. It is for this purpose a separate entity from the PTTC, although the PTTC represents the Crown and for the purposes of the Judiciary Act and Constitution may well be the State. That does not make the corporation created by s 35R and the body politic the same "person". On this basis, the Evidence Act , ss 130 and 131A are not engaged.
33Having regard to this conclusion, it is not strictly necessary to consider whether the State is "a person" within the meaning of s 131A(1)(a) of the Evidence Act . Nonetheless, as the question was debated in argument, it is appropriate to express a view.
34The question of whether the State is "a person" for the purpose, and within the meaning, of s 131A(1)(a) is a matter of statutory interpretation. This process commences with the presumption that the general words of a statute do not bind the Crown or its instrumentalities or agents: Bropho v Western Australia [1990] HCA 24; 171 CLR 1 at 22. The earlier position that the Crown would only be bound if the statute contained express words to that effect or if the intention to bind the Crown was manifest from the very terms of the statute is now viewed as outdated: Bropho at 19 and cf Province of Bombay v Municipal Corporation of Bombay [1947] AC 58 at 61; Bradken Consolidated Ltd v Broken Hill Pty Co Ltd [1979] HCA 15; 145 CLR 107. In Bropho , six justices of the High Court said (at 23):
"In the case of legislative provisions enacted subsequent to this decision [which the Evidence Act was], the strength of the presumption that the Crown is not bound by the general words of statutory provisions will depend upon the circumstances, including the content and purpose of the particular provision and the identity of the entity in respect of which the question of the applicability of the provision arises. If, for example, the question in issue is whether the general words of a statute should be construed in a way which would make the Sovereign herself or himself in the right of the Commonwealth or of a State liable to prosecution and conviction for a criminal offence, the presumption against a legislative intent to that effect would be extraordinarily strong."
35To assess the meaning of the phrase "a person" for the purposes of s 131A(1)(a), it is important to consider the relevant provisions of the Interpretation Act and the provisions of the Evidence Act itself. Section 21 of the Interpretation Act provides that, in any Act or instrument, the meaning of the term "person" includes "an individual, a corporation and a body corporate or politic". No contrary definition of "person" is contained in the Evidence Act . Section 7 of the Evidence Act provides as follows:
"This Act binds the Crown in right of New South Wales and also, so far as the legislative power of Parliament permits, in all its other capacities."
36In Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334, the High Court considered whether reference to a "person" (as including a person not being a corporation) in ss 6(3) and 75B(1) of the Trade Practices Act 1974 (Cth), extended the application of some aspects of the legislation to the State of New South Wales. It did so against the backdrop of the Acts Interpretation Act 1901 (Cth), s 22(1), which provides, in similar terms to the Interpretation Act , that expressions used to denote persons generally include a body politic. The majority of the Court held that at the time of the acts complained of the relevant provisions of the Trade Practices Act did not apply to the State of New South Wales (at 349). Section 2A of the Trade Practices Act provided, relevantly: "this Act binds the Crown in right of the Commonwealth in so far as the Crown in right of the Commonwealth carries on a business, either directly or by an authority of the Commonwealth" and that the Act would apply to the Commonwealth (and each authority of the Commonwealth) in so far as it carried on a business as if it were a corporation. The inclusion of s 2A was held by the majority of the Court to raise the rule of statutory construction embodied in the Latin maxim expressio unius est exclusio alterius such that s 2A represented a "complete and exhaustive statement" of the Act's application to the Commonwealth (at 348-349). Although not an express exclusion of the application of the Act to the States, it was held to tell strongly against the Act so extending. Thus, the majority of the Court found that the Trade Practices Act evinced an intention that a State was not a person for the purposes of the relevant sections, contrary to the Acts Interpretation Act 1901 (Cth), s 22(1).
37In Commonwealth v Wood [2006] FCA 60; 148 FCR 276, Heerey J held that the Commonwealth was a "person" for the purposes of the application of the Anti-Discrimination Act 1998 (Tas), s 16. His Honour held that s 4, which stated (similarly to s 7 of the Evidence Act ) that the Act bound the Crown in right of the State (Tasmania) and, so far as was permissible, in all other capacities, extended to bind the Crown in right of the Commonwealth. In so finding, Heerey J gave weight to the fact that the Anti-Discrimination Act was beneficial legislation, which ought to be construed liberally and that "since s 4 provides expressly that the Crown in the right of Tasmania is bound, the Crown, at least in that capacity, must be a 'person' for the purpose of s 16" (at 283). Heerey J's decision was not followed in Commonwealth v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104; 169 FCR 85, per Weinberg J and Kenny J, Goldberg J dissenting. Weinberg J held that, reading the Anti-Discrimination Act 1998 (Tas) as a whole, the construction supported by s 4 that the Commonwealth was a "person", was outweighed by indications elsewhere in the Act which tended against that being the case (at 118). Kenny J also found that the Anti-Discrimination Act 1998 (Tas), viewed as a whole, did not apply to the Commonwealth as a person. Her Honour noted that the Acts Interpretation Act 1931 (Tas), s 41(1) (unlike the Commonwealth and New South Wales Acts) stated that the expression "person" "shall include any body of persons, corporate or unincorporated, other than the Crown" (at 123). Kenny J also noted that the definition of a "person" in the Anti-Discrimination Act 1998 (Tas), s 3, included an "organisation" and "organisation" was defined to include "a council, a Government department ... or a State authority". Her Honour held that the specific reference to State authorities and State departments and local government, which would come within that term in the absence of reference to other bodies politic weighed against the term "organisation", and, therefore, "person" as including the Commonwealth (at 125-126).
38As mentioned earlier, the Interpretation Act , s 21 adopts the wider definition of the term person as including a body politic. The Evidence Act , ss 130 and 131A do not seek to impose upon the State obligations of a nature which would require express language that the Crown be "a person" for the purposes of those sections. Taken together with s 7 of the Evidence Act , which states the Crown to be bound unreservedly, the construction favoured in the Interpretation Act would not appear to be displaced.
39Further, the phrase "a person" finds its place in Div 4 of Pt 3.10 dealing with privileges which include in s 130 in Div 3 of Pt 3.10 the question of matters of State. One of the circumstances to which ss 130 and 131A can be seen to be naturally directed is the State (and not merely instrumentalities or corporate agents of the State) being required by a "disclosure requirement" to produce a document and objecting to that course. If there were litigation to which the polity of the State of New South Wales was a party or in which a subpoena was directed to it, the plain intent of ss 130 and 131A is that the Evidence Act would regulate production. In that context, the word "person" would be wide enough to encompass the State, displacing any presumption to the contrary.
40Nevertheless, for the reasons I have earlier given, the Evidence Act , s 131A, is not engaged here.
41Notwithstanding this conclusion, the assessment of the claims for the immunity will be undertaken both by reference to the common law and the Evidence Act , s 130.
[7]
Applicable Principles
42Both 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.
43The reasons of the majority (Mason CJ, Brennan J, Deane J, Dawson J, Gaudron J and McHugh J) in Commonwealth v Northern Land Council [1993] HCA 24; 176 CLR 604 (" NLC ") at 614-619 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 (1997) 76 FCR 9 at 63 (per curiam); Chapman v Luminis Pty Ltd (No 2) [2000] FCA 1010; 100 FCR 229 at 246 (von Doussa J). 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.
44It is not appropriate to take one line or one idea from the discussion by their Honours in NLC . The essence, however, of the underpinning ideas expressed in the reasons is the prevention of prejudice to the subject to which the Evidence Act , s 130(4)(f) is directed: the proper functioning of government of the polities of the Federation.
45A number of propositions can be taken from their Honours' reasons to guide consideration of this issue. It is in the public interest that deliberations of Cabinet, including the decisions made by Cabinet, should remain confidential in support of the collective responsibility of Cabinet government: NLC at 615. It is the position of the body as responsible for the creation of state policy at the highest level that engenders the need for protection: NLC at 615. Thus, an important consideration is the protection of deliberations leading to the formulation of state policy, though this proposition should not be taken as meaning that only formulation of policy is to be protected. The threat of disclosure may impede or mute free and vigorous exchange in Cabinet: NLC at 615. Decision-making and policy development by Cabinet is to be uninhibited: NLC at 616. The division of claims into "class" and "contents" claims is rough, but acceptable, to differentiate types of documents the disclosure of which would injure the public interest, irrespective of contents, and those which ought not to be disclosed because of their contents: NLC at 616. Documents revealing Cabinet deliberations and decisions fall within the former class. But their immunity is not absolute: NLC at 616. The immunity must be weighed against the public interest in the administration of justice: NLC at 616.
46The nature of this weighing or balancing process is what lies at the heart of any contested application such as this. The majority in NLC at 616-617 approved a passage from the judgment of Gibbs ACJ in Sankey v Whitlam [1978] HCA 43; 142 CLR 1 at 43 which is worthy of repetition here:
"The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection - the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned. If a strong case has been made out for the production of the documents, and the court concludes that their disclosure would not really be detrimental to the public interest, an order for production will be made."
47The majority in NLC at 617 elaborated upon the last sentence in this passage from Gibbs ACJ's reasons in Sankey v Whitlam saying:
"In a case where a document fell into a class of document the disclosure of which would be injurious to the public interest regardless of the contents, a court could conclude that 'disclosure would not really be detrimental to the public interest' only in circumstances where there was a competing public interest, such as the public interest in the advancement of justice, which outweighed the public interest in the preservation of confidentiality."
48Their Honours then went on to say at 617 that the currency or controversiality of the subject matter is relevant to the balancing process. The character of the subject matter is, implicitly, also important. Their Honours had already spoken of policy and its formulation through the deliberations of Cabinet. Their Honours then emphasised that immunity of documents of Cabinet deliberations and Cabinet documents (ordinarily attracted irrespective of contents) is not absolute: NLC at 617-618. A court will initially lean against disclosure: NLC at 618. Whether circumstances are sufficient to displace the immunity depends in part on the nature of the class. As to this the majority said at 618:
"In the case of documents recording the actual deliberations of Cabinet, only considerations which are indeed exceptional would be sufficient to overcome the public interest in their immunity from disclosure, they being documents with a pre-eminent claim to confidentiality. The process of determining whether an order for disclosure of documents in that class should be made remains one of weighing the public interest in the maintenance of confidentiality against the public interest in the due administration of justice , but the degree of protection against disclosure which is called for by the nature of that class will dictate the paramountcy of the claim for immunity in all but quite exceptional situations .
Indeed, for our part we doubt whether the disclosure of the records of Cabinet deliberations upon matters which remain current or controversial would ever be warranted in civil proceedings. The public interest in avoiding serious damage to the proper working of government at the highest level must prevail over the interests of a litigant seeking to vindicate private rights. In criminal proceedings the position may be different."
(Emphasis added.)
49The authoritative statements of principle and approach in NLC both expound the common law of Australia and assist in the understanding of the content of the phrase "prejudice [to] the proper functioning of government" for the purposes of s 130(4)(f).
50Cabinet documents in the form of documents recording the matters put to Cabinet for discussion (such as minutes for the consideration of Cabinet) have been held to be in the same position as records of the deliberations or decisions of Cabinet: Commonwealth v Construction, Forestry, Mining and Energy Union [2000] FCA 453; 98 FCR 31 at 42-43 [42]-[45]; Egan v Chadwick [1999] NSWCA 176; 46 NSWLR 563 at 573 [69] and J D Heydon, Cross on Evidence (LexisNexis Butterworths, 8 th Australian ed, 2010) at p 961 [27065]. Thus, broadly, records of Cabinet deliberations and decisions and documents revealing the deliberations of Cabinet will be regarded as attracting the protection conferred by public interest immunity or by that afforded to matters of state, subject to the balancing of the competing interests. The public interest in preserving the secrecy of such documents will ordinarily be given considerable weight in the balancing process.
51The author of Cross on Evidence (8 th ed), after discussing the broad equivalence of documents recording the deliberations or decisions of Cabinet and those which reveal those deliberations says at p 961:
"Having regard to the strength of the claim for immunity, a judge ought not to order disclosure unless satisfied that the materials are crucial for the proper determination of the proceedings."
52Conformably with the weighing or balancing process discussed in NLC and inhering within s 130, relevant considerations to take into account are whether the documents concern policy, the currency and contemporaneous controversiality of the subject matter, the character of the subject matter otherwise, for instance whether national security or high policy and the forensic relevance of the documents: see the Full Court in Commonwealth v Northern Land Council (1991) 30 FCR 1 at 38; North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1080 at [16] (Wilcox J); Betfair Pty Ltd v Racing New South Wales (No 7) [2009] FCA 1140; 181 FCR 66 at [34] (Jagot J); and RP Data v Western Australian Land Information Authority [2010] FCA 922; 188 FCR 378 at [23] (Barker J).
53The word "policy" should be recognised as a broad concept. It is notoriously difficult to differentiate between "policy" and "operation" in some contexts. I would understand the word to be used (and I use it below) in the sense of the consideration of approaches and conduct for the present and the future assessed by reference to the general interests of society. What I exclude from policy is the consideration, here, of a particular body of facts in a particular legal and contractual context and any discussion about that specific contractual matter.
54This concept does not necessarily exclude consideration of what might be described as commercial ventures undertaken by governments or in which governments participate one way or another. The history of Australia reveals that governments have often participated in undertakings of a kind that involve large expenditure of money and large social and economic investments. To say this is to recognise that policy, economic and commercial considerations play a part in such undertakings.
55However, the cases have recognised that the commercial or contractual responsibilities of government, once entered, may well be able to be treated differently to questions of policy. To the extent that the executive branch of government participates in contractual arrangements and commercial undertakings (in the advancement of the public interest), there is much to be said for the proposition (present elsewhere in the legal system eg the Judiciary Act 1903 (Cth), s 64) that it should be treated like any other litigant in a commercial dispute in which it finds itself: cf Robinson v South Australia (No 2) [1931] AC 704 at 715; Harbours Corporation of Queensland v Vessey Chemicals Pty Ltd (1986) 12 FCR 60 at 63-64; Hooker Corporation Ltd v Darling Harbour Authority (1987) 14 ALD 110; Carey v Ontario [1986] 2 SCR 637 at [82]-[84]; Adelaide Brighton Cement Ltd v South Australia [1999] SASC 379; 75 SASR 209; Sportsbet Pty Ltd v New South Wales (No 3) [2009] FCA 1283; 262 ALR 27 at 38 [39]. These cases reveal that whilst not a hard and fast consideration, the commercial character of a contract as the subject matter of a document is an important consideration in the balancing exercise. In particular, consideration of a specific contractual dispute or of particular facts relevant to that dispute may require a different approach than consideration of whether a government should become involved in a proposed project. In this respect, an important consideration in the due administration of justice is the denial of any possible perception that the government is in a privileged position in how it litigates its commercial rights and entitlements against citizens, in the absence of demonstration of a proper basis of interest of a character that attracts the immunity. There are many circumstances where policy has got nothing to do with a decision by government as to a step in a commercial arrangement or dispute. There are other circumstances where commercial decision-making and policy can intersect.
56The likelihood that candour by public officials will be discouraged should disclosure of their communications be possible has been at times doubted: Air Canada v Secretary of State for Trade (No 2) [1983] 1 All ER 161 at 168; and see NLC at 615. Whatever may be the legitimacy of that consideration in regard to non-commercial questions or in questions of policy, it should usually have little weight in the reporting on and discussing of the factual and legal aspects of a commercial dispute involving the State. The candour of those reporting to Ministers and Cabinet about the factual and legal state of a contractual or commercial dispute and the available courses of action is hardly likely to be undermined if, in due course, when the dispute becomes litigious, the advice is disclosed in litigation about the contract or commercial transaction.
57These kinds of considerations must be brought to bear on the individual documents with which we are asked to deal. Broad generalisations are to be avoided.
[8]
The evidence generally
58Criticism was made of the evidence led by the State, both in the primary judge's reasons and in submissions in this Court. Whilst there was a degree of generality about it, once one descends to the document in question the issues of application of principle become tolerably apparent. I can understand that with the volume of documents a somewhat general approach was chosen. I can also understand why it may have been very difficult to be more specific.
59In the end, using the evidence led, I am able to come to a view on the attachment or not of the immunity. In these circumstances, I have not found it necessary to deal with ERG's submissions on so-called "cherry-picking" by the State.
[9]
Category D: "Decisions of the Budget Cabinet Committee"
60Before dealing with these documents, Mr Miller's affidavit described the Cabinet and Cabinet processes (at paras 11-26). In that explanation the Budget Cabinet Committee was described as a committee charged with the responsibility of overseeing the financial management of the State, the Budget process and ongoing expenditure across government. The Committee is part of Cabinet.
61The six documents in category D were described as follows:
D1: Cabinet Standing Committee on the Budget - Decision Paper, 24 September 2007.
D2: Cabinet Standing Committee on the Budget - Decision Paper, 5 November 2007.
D3(a): Cabinet Standing Committee on the Budget - Decision Paper (note of Ministers in Attendance), 5 November 2007.
D3(b): Cabinet Standing Committee on the Budget - Decision Paper, 5 November 2007.
D4: Cabinet Standing Committee on the Budget - Decision Paper, 5 November 2007.
D5: Cabinet Standing Committee on the Budget - Decision Paper, 23 January 2008.
D6: Cabinet Standing Committee on the Budget - Decision Paper, 23 January 2008.
62In relation to them, reliance was placed on paras 32-35 of the affidavit of Mr Miller, which were as follows:
"[32] The documents at Tabs D1 to D6 of Volume 1 of Confidential Exhibit CE1 are decisions of the Budget Cabinet Committee. It is vital to the good government of New South Wales that Budget Cabinet Committee decisions be recorded accurately, precisely and as succinctly as the subject matter permits. Budget Cabinet Committee decisions are so recorded. They are recorded in a manner that is not designed for publication.
[33] In many cases the disclosure of a Budget Cabinet Committee decision would disclose, implicitly or explicitly, the deliberations of the Committee. Budget Cabinet Committee decisions may disclose dissenting views or disclose positions of particular Ministers which positions were rejected by the Committee. As such, disclosure of Cabinet Decisions would undermine the principle of collective responsibility upon which the Budget Cabinet Committee operates.
[34] If the records of Budget Cabinet Committee decisions were liable to being disclosed pursuant to the discovery process it would tend to inhibit the phrasing and recording of those decisions. In some cases decisions would be phrased and recorded in a manner calculated to be suitable for disclosure to the public. On some occasions there would be a tendency to phrase and record decisions in more circumspect and inhibited language, perhaps with statements of reason and qualification incorporated. There would arise a tendency towards the phrasing and recording of decisions in less precise terms. It would be against the public interest for Budget Cabinet Committee decisions to be recorded imprecisely or verbosely. Therefore, it would be against the public interest to expose any record of a Budget Cabinet Committee decision.
[35] I am informed by Barbara Wise and believe that whilst aspects of some of the substance of some of the particular decisions of the Budget Cabinet Committee have since been made public, the public statements are not worded using the same language used in the decisions. Further, I am informed by Ms Wise and believe that not all parts of those decisions have been made public and that several parts of the decision reflect what the Budget Cabinet Committee took into account when reaching its decision and are not matters that have been publicly disclosed. Disclosure of the decisions will therefore disclose the deliberations of the Budget Cabinet Committee that have not been made public."
63None of these documents was stamped "Cabinet in Confidence".
64The evidence at para 32 was sufficient to have these documents categorised as relating to matters of state for the purposes of s 130(4) or as part of the well-recognised class of documents that prima facie attracts immunity as "State papers": Sankey v Whitlam at 39-42 (Gibbs ACJ) or as records of the decisions of a Cabinet Committee: NLC at 614-618.
65It was submitted on behalf of the State that the clear status of these documents should lead (and should have led) to their protection from production under the immunity without the need to examine the documents. I do not agree. Whether or not Cabinet documents are immune from disclosure is based on the public interest which can be affected by the question of the currency or continuing relevance of the subject matter of the documents and their relevance to the proceedings: Sankey v Whitlam at 41-43; NLC at 616-618; New South Wales Commissioner of Police v Nationwide News Pty Ltd [2007] NSWCA 366; 70 NSWLR 643 at 649 [42]. To the extent that the Evidence Act , s 130 is relevant, the assessment of any prejudice to the proper functioning of the government of the State under s 130(4)(f) necessarily involves a similar weighing process.
66The State relied on Ms Quilty's affidavit of 26 May 2010 in relation to the on-going currency of documents. In that affidavit, Ms Quilty explains the continuing political debate and live policy issue regarding fare reform: see in particular paras 24-26 of her affidavit at Blue Vol 1 p 41. She does not deal with documents in categories D or G, but she does deal with documents in category E. She says the following in paras 24-26:
"[24] Fare reform in respect of public transport in New South Wales is an important and sensitive issue because of the impact it has on the daily lives of commuters living in metropolitan regions of New South Wales; the cost of running public transport services; the Government's long term metropolitan infrastructure and development plans as targeted in the State Plan given that the effect that [ sic ] the structure and price of public transport fares have on consumer demand.
[25] There is a diverse range of strongly held opinions about what fare structure should apply to public transport services. Government has to balance a wide range of competing priorities including (but not limited to) the cost to taxpayers of subsidies, the impacts of pricing signals on the economically efficient operation of the network, and social equity considerations. It is important that Government make these decisions in an environment that is not impacted by ill-informed criticisms.
[26] I therefore maintain the view expressed in the affidavits sworn by Andrew Nicholls in these proceedings that the disclosure of documents of the kind contained in Confidential Exhibit AN1, including the reports contained in Volume 2 of that Confidential Exhibit, would significantly inhibit the ability of persons developing government policy and preparing relevant Cabinet Minutes from obtaining advice and views of others with expertise within and outside of government on issues being considered by Cabinet which in turn will significantly reduce the quality of any advice that is then able to be provided to Cabinet."
67Ms Quilty's view as to the current relevance of policy at that level of generality is of assistance, to a point. It makes clear the continuing currency of a subject matter. It does not help very much in translating that to the examination of any particular document. Certainly, if the subject of the document related to the development and content of fare policy one could see the relationship with current policy and contemporaneous controversy. It does not follow at all, however, that documents dealing with a particular commercial contractual dispute, that arose out of the execution of that policy, where that dispute is now being litigated, remain in any way current or controversial.
68All the documents with which we are concerned (categories D, G, A, E and N) are documents created and deployed for use at the highest levels of government: Cabinet and Ministerial level. That said, care must be taken to recognise that parts of them deal solely with a particular commercial contract (of some magnitude) entered by the PTTC. To the extent that these documents simply discuss the particular contract and the conduct of the parties to that contract, no questions of government policy will arise. I say this not as a matter of logic but by reference to the documents that I have examined and that I discuss below. Significant parts of these documents simply discuss a contract that has been entered, and, in latter years, that appears not to have produced the expected results. These matters were referred to and deliberated upon by Cabinet because of the monetary size and scale of the contract and, one can infer, because of the importance of public transport to the public and to the Government in a political sense.
69That importance does not mean that any historical discussion of a transport related contract that may have gone wrong necessarily engages any question of policy. It may do so. The contract may epitomise an error in policy that is discussed and that policy may be of current relevance (for instance, in the general way discussed by Ms Quilty). The consequences of a breach of contract and how they are to be dealt with may give rise to policy questions. Or, the discussion may simply be a factual and legal one as to the contents and nature of a dispute and how to deal with it. Simply to label the topic as a commercial dispute will not answer the question as to application of the immunity or as to the intrusion of government policy. Nevertheless, if the Cabinet Minute deals with the circumstances of a (large) commercial dispute involving the State and raises no question of policy and is of no particular currency, these will be important considerations in assessing the public interest or the prejudice to government that would be caused by disclosure of the documents.
70Taking all of the above into account, the disclosure of documents recording the actual deliberations of Cabinet itself (or of one of its committees, such as the Budget Cabinet Committee) must be governed by what was said in NLC . In respect of such documents "only considerations which are indeed exceptional would be sufficient to overcome the public interest in their immunity from disclosure".
71As to D1, decision of 24 September 2007 in relation to T card and other issues (Confidential Blue Vol 1 pp 38-42), aspects of the minute do not concern the T card: see items 1, 2, 3, 5 and 6. The immunity plainly attaches to these. Item 4 it contains resolutions of the Budget Cabinet Committee, many of which relate to this contract and the dispute concerning it, though some are broader: for example 4.4, 4.5, 4.7, 4.9 and 4.10 (to a limited extent). Paragraphs 4.1, 4.2, 4.3, 4.6 and 4.8 relate solely to this contract. Parts of this document are directly relevant to the proceedings. They record decisions about this contract. If the balancing were to be assessed solely by reference to the subject matter of the contents, I would have no hesitation in ordering disclosure. But these are the records of decisions of government in Cabinet. I cannot conclude that the circumstances are so exceptional as to warrant the disturbance of the maintenance of confidentiality for the decisions of the highest level of government. In particular, in circumstances where the PTTC, and not the State (as a polity) was a party to this contract and had to take the steps necessary to terminate or enforce rights under the contract, I do not see the decisions of Cabinet as of substantial significance to the disposition of the case. I would maintain this view notwithstanding the conclusion that I have come to concerning the draft Cabinet Minutes and like documents in category E.
72As to D2 - D4, decisions of 5 November 2007 in relation to T card and other issues (Confidential Blue Vol 1 pp 43-53), aspects of the minutes do not concern the T card: item 6 (p 44), item 1 (pp 47-48), item 2 (pp 48-49), item 3 (p 49), item 4 (p 49), item 6 (p 50) and items 7 and 8 (p 51). Item 5 (5.1-5.3) (pp 44, 50 and 52-53) concerns the T card contract and steps in relation to the dispute. Notwithstanding these considerations, as for D1, no exceptional circumstances have been shown to warrant disclosure. Item 5.4 has a slightly broader policy content. The immunity attaches to it.
73As to D5 - D6, decisions of 23 January 2008 in relation to T card and other issues (Confidential Blue Vol 1 pp 54-67), aspects of the minutes do not concern the T card: item 4 (pp 57-59 and 64-66), item 5 (pp 59 and 66) and item 6 (pp 60 and 67). Item 3 concerns the T card. Items 3.1-3.7 concern the contract, its termination and the likely dispute. Notwithstanding these considerations, as for D1, no exceptional circumstances have been shown to warrant disclosure. Items 3.8-3.13 concern the future policy and planning assuming the end of the contract with ERG. To the extent that the decisions and minutes in category D record views and steps taken in relation to this particular contract and this particular dispute, it could be said that there is little or no remaining currency or contemporaneity, other than the dispute itself in the courts (which was rightly eschewed by senior counsel as relevant). Thus, those parts of the Cabinet decisions appear to have little or no currency. Nevertheless, for the Court to order disclosure of the records of the actual deliberations and decisions of Cabinet more is required - there must be exceptional circumstances, which I do not see here.
[10]
Category G: "Highlighted parts of various documents that disclose content, subject matter or substance of cabinet minutes"
74These were 40 documents described by the State as parts of various board papers of the PTTC, Ministerial briefing notes, emails, file notes and presentations that were said to disclose the deliberations of Cabinet. The State relied upon Mr Miller's affidavit at paras 11-25, 36-41 and 47. In paras 11-25 Mr Miller described the process of Cabinet government. In paras 36-41, under the heading "Cabinet Minutes", he described how proposals are brought to Cabinet by a sponsoring Minister, most frequently in the form of a Cabinet Minute, about which Mr Miller said the following at para 36:
"[36] ... A Cabinet Minute is a recognised and readily identifiable form of document of State setting out a proposal, the objectives of the proposal, supporting arguments, alternative options considered (if any), and recommendations for an appropriate course of action in relation to the proposal. ... A Cabinet Minute sets out the views of the Minister who presents the Cabinet Minute to Cabinet. Cabinet does not necessarily adopt the recommendation(s) made in the Cabinet Minute."
75He described the preparation of drafts of the Cabinet Minute at paras 37-38:
"[37] Cabinet Minutes are generally prepared by officers in the department or agency of the sponsoring Minister. Whilst one officer may prepare a first draft of a Cabinet Minute, the draft is usually circulated to a number of officers within the relevant department or agency as well as to a number of officers from other Government departments or agencies that may be affected by or have input in relation to the matters being discussed in the Cabinet Minute. This is done to ensure that the advice given to Cabinet is comprehensive and that any proposals put to Cabinet are workable for the whole of Government. The correspondence usually discloses the contents of the Cabinet Minute and discloses the different proposals being put before Cabinet for its consideration.
[38] Whilst drafts of Cabinet Minutes may be changed they would generally tend to disclose the substance of the matters that were put before Cabinet for consideration. They also generally tend to reveal the substance of the views expressed by the sponsoring Minister on the particular issues."
76This evidence was at some level of generality: see especially the phrase "generally tend". It was accepted by senior counsel for the State that there was no evidence that linked any draft communication with what went before Cabinet or with what actually formed the basis of what a Minister took to or said to Cabinet. At paras 39-41 Mr Miller said the following, which addressed, in part, that deficiency:
"[39] Disclosure of draft Cabinet Minutes or related correspondence that reveal the substance of the Cabinet Minutes would therefore tend to result in an indirect disclosure of the deliberations of Cabinet and for that reason would tend to mute and impede Cabinet discussions and deliberations on future matters, including unrelated matters.
[40] Further, if drafts of Cabinet Minutes, even drafts that are not ultimately provided to Cabinet, were liable to being produced then either:
(i) the Minister may not request their preparation; or
(ii) the person preparing the draft will present the information in such a way as to minimise controversy in the event that the document is revealed by either omitting discussion of any options that may be controversial or couching the discussion in very vague terms so as to avoid criticism.
In either scenario the result will be that Cabinet and Ministers will no longer have a reliable and comprehensive form of written advice to consider on important matters of public policy and administration.
[41] Disclosure of draft Cabinet Minutes or of parts of documents that disclose the substance of the draft Cabinet Minutes would therefore be contrary to the public interest in the proper administration of Government."
77He also said the following at para 47:
"[47] The highlighted parts of the documents in [Confidential Blue Vol 3] disclose the contents, subject matter or substance of Cabinet Minutes and the disclosure of the highlighted parts would therefore for the reasons given earlier, be contrary to the public interest."
78In order to evaluate this evidence it is necessary to go to the documents at Confidential Blue Vol 3 pp 833-1026.
79I deal with the documents in the form in which they appear in Confidential Blue Vol 3. The references to page numbers are to that volume. The Court was provided at the appeal with deficiently copied appeal books in that Confidential Blue Vol 3 did not clearly identify the highlighted portions in respect of which the immunity was claimed. A replacement volume was supplied. I have only dealt with the portions highlighted in colour in that replacement volume.
[11]
G1 (pp 833-834): Email dated 29 May 2003 re: "Documents for Review - ITP cost system"
The highlighted parts contain discussion of general questions of policy and interest to the State not limited to this contract. The immunity attaches.
[12]
G2 and G3 (pp 835-843): Presentation paper: "Integrated Ticketing Project - Objectives, Benefits and Costs" July 2003
Pages 837 and 841 contain highlighted portions concerning the advantages of a "smart card". It states what was put to the Budget Cabinet Committee in 2001, before the contract was entered. It is not of substantial importance to the resolution of the case. It deals with general considerations about policy. No sufficient basis has been shown so as to disturb the immunity.
[13]
G4 (pp 844-848): Minutes of meeting of 16 July 2004 of the Integrated Ticketing Project Shadow Board
Page 847 refers to a proposal to draft a minute for the Budget Cabinet Committee. It is difficult to see the relevance of this document to any issue in dispute. In any event it appears to relate to policy issues. The immunity attaches.
[14]
G5 and G6 (pp 849-858): Minutes of meeting of 13 August 2004 of T card Project Shadow Board
Highlighted portions appear on pp 853 and 858. These documents are in the same position as G4. The immunity attaches.
[15]
G7 and G8 (pp 859-860): Action list from a meeting (2 copies)
The highlighted entry refers to the preparation of a Cabinet Minute to progress the establishment of "the new entity". While there appears to be little or no currency or contemporaneity, it, too, is in the same position as G4. The immunity attaches.
[16]
G9 and G11 (pp 861-862 and 863-864): Email dated 22 September 2004
One paragraph on pp 861 and 863 that is highlighted recites the content of a Cabinet submission. It also concerns information provided to ERG under the commercial arrangements. There could be no currency or controversy in the contents. It does not appear, however, to be in any way important to the disposition of the case. I see no sufficient countervailing considerations to warrant loss of the immunity.
[17]
G12 (pp 865-870): Minutes of a meeting of 15 September 2005 of the T card Project Shadow Board
The highlighted portion on p 866 describes the fact of a Cabinet Minute having been lodged. The second sentence describes what the Minister has advised as to his wishes. It is neither current nor controversial. Nevertheless it concerns a Minister's views about legislation being formulated. The immunity attaches.
[18]
G13 and G14 (pp 871-899): PTTC monthly board papers July 2007
The highlighted portions on pp 873 and 893 discuss a meeting of the CEO of the PTTC with Ministry of Transport representatives. The discussion can be seen to relate to the development of policy and the development of a draft Cabinet Minute. The extract remains covered by the immunity.
[19]
G15(a) (pp 900-905): Email dated 21 July 2006
The highlighted portion on p 900 refers to a Cabinet Minute of November 2002. Whilst the contents do not appear current or controversial, there is no particular reference to this contract and no real reason for it to be disclosed. Thus there is no countervailing consideration to warrant disclosure. The immunity attaches.
[20]
G15(b), G15(c), G15(d) and G15(e)
These documents have no parts highlighted in colour.
[21]
G16 (pp 910-918): PTTC board meeting papers June 2007
There is a highlighted portion on p 910 about the Budget Cabinet Committee's allocation of funds and the basis of it. The contents concern the basis of financial advice as to government decision-making. The immunity attaches.
[22]
G17 and G18 (pp 919-920): Strategic planning time line entitled "Cabinet in Confidence" August 2007
The highlighted portion concerns a subject for Cabinet's consideration that may go beyond the contract in question. There is no reason to consider the entry to be of substantial importance to the resolution of the litigation. The immunity attaches.
[23]
G19, G20, G21 and G22 (pp 921-940): Ministerial briefing 6 August 2007: "Overview of the Strategic and Operational status of the T-card Project"
The highlighted portions on pp 923, 928, 933 and 938 concern the development of a Cabinet Minute concerning matters of policy and reform. The immunity attaches.
[24]
G23, G24 and G25 (pp 941-947): Ministerial briefing 13 August 2007: "Overview of the Strategic and Operational status of the T-card Project"
The highlighted portions on pp 943, 945 and 947 (the extent of the claim is in 945, an error appears to have been made in omitting a paragraph at 943 and 947) concern matters of policy and reform. The immunity attaches.
[25]
G27 (pp 948-956): PTTC board minutes July 2007
The highlighted portion on p 950 deals with advice from the Ministry of Transport referring to proposals that appear to concern policy. The immunity attaches.
[26]
G28 and G29 (pp 957-966): PTTC board papers Chief Executive's report 24 August 2007
Pages 957 and 964 contain a highlighted paragraph dealing with developing a Cabinet Minute, concerning matters of policy. The immunity attaches.
[27]
G30 and G31 (pp 967-976): Ministerial briefing 28 August 2007: "Overview of the Strategic and Operational status of the T-card Project"
On pp 969 and 974 there is a highlighted portion concerning the development of a Cabinet Minute dealing with policy. The immunity attaches.
[28]
G32 and G33
G32 and G33 have no parts highlighted in colour.
[29]
G34 and G35 (pp 980-984): Agenda for ministerial briefing dated 31 October 2007: "Overview of the Strategic and Operational status of the T-card Project"
Pages 981 and 983 contain two highlighted matters. The first concerns a recommendation to the Minister as to action under this contract. It does disclose what would go to the Budget Cabinet Committee. Though it is historical in relation to the conduct of this contract and is neither current nor controversial, it tends to reveal what Cabinet later concluded. It is difficult to see that it is important to the resolution of the proceedings. The immunity attaches. The second highlighted portion refers to legal advice concerned with this contract. It is neither current nor controversial. It is not covered by the immunity. It may well be covered by legal professional privilege, if claimed. Subject to the claim for privilege, with which these reasons do not deal, it should not be held back by reason of public interest immunity.
[30]
G36 (pp 985-1019): CEO report of the PTTC dated 26 February 2008
The Chief Executive Officer's report deals with the legal position of the dispute. On p 988 there is a highlighted portion entitled terms of reference. It deals with policy for the future and policy. It remains covered by public interest immunity and should not be disclosed.
[31]
G38 (pp 1020-1022): Document entitled "Stakeholder Commitment" 1 July 2004
The highlighted portion on p 1020 is difficult to read but appears to relate to an earlier Cabinet submission and its content. Though it is not current or controversial, it refers to considerations of Cabinet and the financial basis of submissions put to it. The immunity attaches.
[32]
G39 and G40 (pp1023-1026): Email dated 20 September 2007
The highlighted portions on pp 1023, 1024, 1025 and 1026 concern the performance by ERG of its contract but that topic is discussed in the context of a discussion of wider policy questions. Though at one level the email can be seen to be directed to this contract, in the light of Ms Quilty's and Mr Miller's evidence and the concern with policy of the email, the immunity attaches.
[33]
Category A: "Speaking notes to assist Minister for Transport/CEO of the PTTC to address Budget Cabinet Committee"
80Mr Miller's affidavit deals with this category at paras 27 to 29. This evidence establishes:
The category A documents A1-A6 are draft or final versions of speaking notes provided to the Hon John Watkins, the then Minister for Transport to assist him in addressing the Budget Cabinet Committee.
Officers prepare these as speaking notes. Drafts are prepared for the obtaining of input from others in the Department or agency (here the PTTC).
Disclosure would tend to disclose what he said to Cabinet.
81Paragraph 28 put the matter thus:
"[28] It is vital to the effective administration of the executive government of New South Wales that Departments be able to provide uninhibited advice to their Ministers on what they might say to Cabinet. It would not be possible for such advice to be provided or not possible for it to be provided in as useful a manner if it were liable to being disclosed outside the executive government. If it were liable to being disclosed, such advice would either not be sought or if it was sought then the document would have to be prepared with an eye to a wider audience which may mean that certain information is excluded or the document drafted in a lengthier and more anodised fashion."
82This evidence must, however, be seen against the background of the law of public interest immunity as it has been explained by the High Court. It is not the law that public interest immunity will protect all Cabinet discussions, about all topics, forever. However, I accept that even if drafts, these speaking notes would tend to disclose what the Minister told the Budget Cabinet Committee. Critical questions are whether they have current and contemporary relevance, especially to policy and whether they deal with the particular dispute. Mr Miller does not say so. Ms Quilty's evidence earlier dealt with is relevant.
83Though speaking notes are not records of deliberations or decisions of Cabinet they are, like minutes for submission to Cabinet, documents which tend to disclose what was put to Cabinet. As such, for their disclosure, the balancing exercise should reveal at least that their disclosure is of substantial significance for the proper determination of the proceedings.
84As to A1 and A2 (Confidential Blue Vol 1 pp 2-5), these speaking notes concern the current (August - September 2007) position of the contractual dispute. They also deal with policy questions, in part connected to the contractual dispute and in part not. I do not see any currency or contemporaneity or policy in p 2 down to and including the paragraph ending: "... agreement with the existing contractor". Whilst these portions deal with a specific contract, they are entitled to the degree of protection both at common law and under the Evidence Act as documents disclosing the considerations of Cabinet. I accept from their discovery that they are relevant to the dispute. If I had not come to the view that I have come to about the documents in category E (the draft Cabinet Minutes, see below), I would have been of the view that the immunity attaches to these category A documents, the speaking notes. However, as discussed below, parts of the category E documents, the Cabinet Minutes and drafts thereof, should be disclosed. This is so substantially for the reason that they deal with this contract and the dispute about it in a manner that can be seen to be of substantial significance to the resolution of the dispute and thus to the due administration of justice. Thus, in circumstances where relevant parts of Cabinet Minutes and their drafts should be disclosed, so should be the equivalent parts of the speaking notes, which I infer to be from the same meetings.
85The balance of pp 2 and 4 and all of pp 3 and 5 of Confidential Blue Vol 1 deal with general policy and, on the basis of Ms Quilty's evidence, are protected by the immunity.
86As to A3 and A5 (Confidential Blue Vol 1 pp 6-8 and 15-17), these are speaking notes as at 5 November 2007 and concern the current contractual position, ERG's response to initial notices, the PTTC's assessment of the response of ERG, the PTTC Board resolution about the dispute, the termination process, the possible responses by ERG to notices and negotiations, legal advice, and other matters in relation to the dispute. Except under the last two headings on pp 8 and 17, I do not see any policy aspect of these speaking notes, nor are they current nor controversial (other than through this litigation). The section under the heading "Legal Advice" may be legally professionally privileged. In light of my reasons (see below) as to Cabinet Minutes, excluding the material identified on pp 8 and 17 and subject to the question of legal professional privilege, these documents should be disclosed.
87As to A4 and A6 (Confidential Blue Vol 1 pp 9-14 and 18-23), these are speaking notes of November 2007 and are another version (it is unclear whether earlier or later) of document A3. The comment as to legal advice applies. There is one additional section on p 14 of Confidential Blue Vol 1 under the heading "Fares". This can be seen to relate to policy, as does the material under the previous two headings. As such these parts should not be disclosed.
88Paragraph 29 of Mr Miller's affidavit deals with documents A7 and A8 (Confidential Blue Vol 1 pp 24-26). Based on what Ms Zealand (the current Chief Executive Officer of the PTTC) had told him, Mr Miller said that Ms Zealand prepared these notes to assist her in addressing the Budget Cabinet Committee. I am prepared to accept that these notes disclose matters considered by the Budget Cabinet Committee in November 2007. The subject matter of the notes concerns the dispute with ERG and matters related thereto. There are aspects of possible legal professional privilege. My reasons as to the Cabinet Minutes (see below) mean that, subject to the question of legal professional privilege, these documents should be disclosed.
[34]
Category E: "Draft Cabinet Minutes and Related Correspondence"
89This category consists of over 70 documents and contains some repetition. The evidence in support is contained in Mr Miller's affidavit and in the documents themselves. Reliance was placed on Mr Miller's evidence at paras 11-25 as to the nature of the Cabinet process, and at paras 36-41 about Cabinet Minutes. Mr Miller then directed some attention to specific documents. One must examine each document in order to assess whether the immunity attaches. I have dealt with a sufficient number as to enable the relevant documents to be disclosed or not according to the approach I have adopted.
90Documents E1-E3 (Confidential Blue Vol 1 pp 68-129) are different drafts of the same Cabinet Minute of May 2001. Though now almost 10 years old, the minute concerns questions of approach and policy, concepts, benefits and plans which can be seen as broadly policy related and of potentially continuing relevance to governmental business. It does not specifically relate to this contract. Public interest immunity attaches.
91Documents E4 and E5 (Confidential Blue Vol 1 pp 130-142) are different drafts of the same Cabinet Minute of mid-2001. Again, although almost 10 years old, the minute concerns aspects of policy and approach though within the context of the seeking of Cabinet approval for finalisation of negotiation in relation to the contract in question. The draft minute is not to be seen merely as an aspect of the historical dealing with ERG. Public interest immunity attaches.
92Documents E6-E9 (Confidential Blue Vol 1 pp 143-188) are different drafts of another Cabinet Minute of late 2001. The minute deals with the recommendation for the award of the contract in question. Much of the minute deals with the proposed relationship, but it is to be found in a wider discussion that involves policy and financial planning some of which is likely to still retain a degree of currency and contemporaneity. Public interest immunity attaches.
93Documents E10(a) and E10(b) (Confidential Blue Vol 1 pp 189-199) are drafts of another Cabinet Minute of September 2005. This minute deals with industrial and financial issues in transport (in particular bus) reform. The drafts involve policy issues that remain current. The immunity attaches.
94Documents E11(a) and E11(b) (Confidential Blue Vol 1 pp 200-211) are drafts of another Cabinet Minute of September 2005. The draft minute and accompanying email concern certain policy issues about transport and related issues. The immunity attaches.
95Documents E12-E18 (Confidential Blue Vol 1 pp 212-288) are drafts of another Cabinet Minute in 2006. The draft minute involves discussion about policy issues related to transport and the "Tcard" system. The immunity attaches.
96Documents E19-E27 (Confidential Blue Vol 1 pp 289-321) include drafts of a Cabinet Minute, comments on the draft and responses to the comments by the PTTC. The draft appears not to have been submitted to Cabinet, but the documentation refers to operational and policy questions of potential currency. The immunity attaches.
97As to documents E30, E32(a), E33(b), E34(c), E36(b), E37(d), E40(b), E40(c), E41(b), E41(c), E42(b), E42(c), E44(b), E45(b) and E48-E50 (which are found at various pages of Confidential Blue Vols 1 and 2 set out in the table supplied at the appeal), notwithstanding the statement in the table supplied these are not identical and must be dealt with individually. One of the documents (E41) is identical to the document the subject of the separate question. It can be inferred from the nature and contents of the documents and Mr Miller's evidence that the draft Cabinet Minutes that make up a significant proportion of the "E documents" were drafted in the PTTC for the Minister. Most are clearly drafts. To that extent their utility to the resolution of the dispute standing alone may be diminished. To the extent that these documents are clearly drafts, they might be said to expose only the drafting of the Cabinet Minute. However, taken as a whole, and bearing in mind that the document the subject of the separate issue is not stamped "draft", that document can be taken to reveal what was put to Cabinet and thus falls into the category of documents that would tend to disclose the deliberations of Cabinet. Some parts of the documents deal with matters concerned with the contract and its termination but with a focus on broader policy questions and broader questions as to the consequence of the termination of the contract. On any view, the immunity attaches to those parts. There are also parts where there is no policy. There are parts where there is a degree of intrusion of policy, in the sense of assessment of the future, into the discussion of Cabinet under the contract in a manner that is minor. For instance, bound up with the discussion of the contract, its performance by ERG and other contractual matters are evaluations of risks and benefits of certain conduct. To a degree, the discussion of these matters looks to the future beyond ERG, but not in a way to disclose policy in any substantial way. Such discussion is intimately connected with the decision on the contract itself.
98I will first deal with the documents (E30-E50) by reference to the parts that may be subject to disclosure because they do not relate to policy (at all or not sufficiently to prevent disclosure) and are not current, but are related to this contract and steps under it. The parts of these documents that may be subject to disclosure by reference to these criteria are as follows:
E37(d), E40(b) and E40(c) (pp 405-418, 422-435 and 436-449): cll 3.1.1-3.1.3, 3.1.7, 4.11-4.78.
E41(b) (pp 451-464). This is the same document that is Confidential Exhibit BD1 being Exhibit BD1 to the affidavit of Mr Brett Davies affirmed 24 November 2010 in the separate question proceedings.
The above gives sufficient guidance on dealing with the balance of the documents in this category: E41(c), E42(b), E42(c), E44(b), E45(b) and E48-E50.
99These documents and many of the following documents (such as E51-E55 and E59-E74) constitute material used in the preparation of Cabinet Minutes. The parts that I have identified above (and equivalent parts in the later similar documents) specifically relate to the dispute between the PTTC and ERG. It is not entirely clear which documents went to Cabinet. Mr North, a consultant, was supplied with one. The status of most of the documents as drafts might tend to diminish their forensic importance. It is plain, however, that the sections of the draft Cabinet Minutes that I have identified herein can be taken to have been drafted by, or with the knowledge of, relevant officers of the PTTC. The material provides an important body of information about the perception by the PTTC of ERG's performance of the contract and the reasons for its decision to terminate the contract. This will be of particular relevance in circumstances in which it is said that the PTTC did not exhibit good faith in and about the exercise of its rights of termination.
100These circumstances persuade me that the material should be disclosed notwithstanding its use in the preparation of Cabinet Minutes. The considerations of the central relevance of the considered perceptions of the PTTC and why it acted under the contract, in the light of the fact that the parts open to disclosure relate only to this contract, do not substantially relate to policy and are not current or controversial, amount in my view to sufficient circumstances to outweigh any attachment of the immunity. They are the relevant exceptional circumstances referred to in NLC .
101Thus, I would disclose the parts of E30-E50 that I have identified. I set out below an analysis of other similar documents on this basis.
102Given the view that I have taken about the disclosure of draft Cabinet Minutes, there is no reason why the speaking notes of Minister Watkins and the PTTC's CEO, Ms Zealand, to the extent that they only relate to the administration of this contract, should not be disclosed.
103Documents E31, E32(b), E33(a), E34(a), E36(a), E38, E39, E40(a), E41(a), E42(a), E43, E44(a) and E45(a) (at various pages of Confidential Blue Vol 1 set out in the table supplied at the appeal) are correspondence said to disclose the contents of a draft Cabinet Minute being the preceding documents (E30 etc). I will deal with these documents individually:
[35]
The separate issue
113A separate issue settled by Hammerschlag J was removed into this Court. It concerned the claim to privilege of a document identified as E41 (being a Cabinet Minute). The issue arose upon the issue of a subpoena to Mr William Joseph North who is the principal of a consulting firm, Lancestock Consulting Services. The agreed facts on the separate issue include that in 2006 and 2007 Mr North's firm was retained by Transport NSW (the Ministry of Transport) to provide reports on the T card project for the purposes of advising the Budget Cabinet Committee. In 2007, Mr North was appointed to a committee established at the request of the Budget Cabinet Committee to provide technical advice in regard to the T card project . In these roles (an advisor to the Ministry of Transport and as a member of the committee) he was provided with draft Cabinet Minutes to check and comment upon. He was retained under a deed of confidentiality. ERG issued a subpoena to him in 2010. One of the documents produced was Exhibit BD1 to the affidavit of Mr Brett Davies of 24 November. It is identical to document E41, with which I have dealt, though it was not stamped "draft". In a sequence of events described in the agreed facts access to the document was accidentally given to ERG. The circumstances of the accidental disclosure of BD1 do not add to the extent of disclosure that should be made in respect of it. The immunity is not subject to waiver. Nor do I consider that the State has acted in any way other than properly in the conduct of the application.
114I have earlier referred to cll 4.10, 4.12 and 4.13 of various documents (see for example cl 4.10 in E60 in Confidential Blue Vol 2 p 650). These clauses state that a report of Mr North is annexed (the report itself is not one of the documents in categories D, G, A, E or N). From the place of this clause in the discussion of the contract amongst clauses that should otherwise be disclosed, there is no reason to conclude that these clauses (cll 4.10, 4.12 and 4.13 in the various documents) should not be disclosed. Immunity does not attach to these clauses. As to Mr North's document, Cabinet has decided to abandon the claim to immunity over Mr North's reports.
[36]
Category N
115Category N concerns various documents which need to be dealt with severally.
Document N1(a) (pp 1085-1086 of Confidential Blue Vol 3) is a letter dated 28 January 2003 from the Director-General of Transport NSW to the Director-General of the Cabinet Office. It concerns matters of policy. The immunity attaches.
Document N1(b) (pp 1087-1090 of Confidential Blue Vol 3) is a document of January 2003 being part of an attachment submitted to the Budget Cabinet Committee. It concerns in part the particular project involving ERG, but it involves implicitly policy issues and remains covered by the immunity.
Documents N2(a) and N2(b) (pp 1091-1098) of Confidential Blue Vol 3) are advices from the Crown Solicitor's Office about the particular transaction. They would attract legal professional privilege, but, as to the claimed immunity, they are historical, relating to a particular transaction, are not current and are otherwise liable to be disclosed.
Document N2(c) (pp 1099-1100 of Confidential Blue Vol 3) is a deed attached to, and the subject of, the above Crown Solicitor's advice. Subject to legal professional privilege it should be disclosed.
Document N2(d) (pp of Confidential Blue Vol 3) is not reproduced in the papers before the Court.
116I have attempted to apply the criteria which I have earlier discussed consistently. If the parties (for obvious reasons, the State in particular) have any concerns as to the consistency of application, these matters can be raised at the time of the making of orders. The general approach should be sufficient to guide the State in how to treat many other documents to which claim has been, or is anticipated to be, made.
117For the above reasons I would make the following orders:
1.Grant leave to appeal and cross-appeal.
2.Set aside the orders of the primary judge.
3.Stand the matter over to a date to be fixed for the making of orders on the appeal and separate question that are consistent with the reasons of the Court.
118HODGSON JA: I agree with the orders proposed by Allsop P and I gratefully adopt his reasons.
119SACKVILLE AJA: I agree with Allsop P.
[37]
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: 24 March 2011
E31 (p 338). There is some disclosure in this email of policy in respect of which the immunity attaches. The document should not be disclosed.
E32(b) and E33(a) (pp 351-354). These are copies of an email dated 9 September 2007 from the CEO of the PTTC that contains some suggestions for drafting of the Cabinet Minute that concern the PTTC. It relates to a part of the Cabinet Minute to which the immunity does not attach and should be disclosed. It is possible that legal professional privilege may be claimed in respect of a portion of the email.
E34(a) (p 369). This is an email dated 12 September 2007. It concerns the costs of the contracted T card project. It does not relate to policy, is not current and should be disclosed.
E36(a) (p 389). This is an email dated 18 September 2007. It concerns the issue of a notice under the contract. It does not relate to policy, is not current and should be disclosed.
E38, E39, E40(a), E41(a), E42(a), E43, E44(a) and E45(a) (pp 419-421, 450, 479, 496, 497 and 512). These are copies of an email dated 18 September 2007 from an officer in the Minister's Office to Ms Quilty at the Department of Transport. The email relates to taking a step under the contract, is not related to policy and is not current. These documents should be disclosed.
104Documents E51-E53, E54(b), E54(c), E55(a)(2) and E55(b) (pp 569-590, 593-602, 603-612, 614-623 and 624-633 of Confidential Blue Vol 2). These documents are drafts of a Cabinet Minute of October/November 2007. The minute is an iteration of an earlier minute (E37(d)). As in relation to that document, some parts of the draft Cabinet Minute do not relate to policy, are not current and relate wholly or substantially to the operation of the contract. In particular, some of the minute concerns the proposal to terminate the contract. The following parts should be disclosed:
In E51 (pp 569-576): 3.1.1-3.1.5, 4.1-4.26, 5.1-5.2 (though the last two paragraphs appear to be subject of legal professional privilege).
In E52, E53, E54(b), E54(c) and E55(b) (pp 577-583, 584-590, 593-602, 603-612 and 624-633): 3.1.1- 3.1.5, 4.1-4.21, 5.1-5.3, 6.1-6.2 (the last two paragraphs recording legal advice).
105Documents E54(a), E55(a)(1), E56, E57 and E58 (at pp 591, 613, and 634-638 of Confidential Blue Vol 2). These documents are an email exchange between Ms Zealand the CEO of PTTC and Ms Quilty of the Department of Transport. E58 also contains a file note of a conversation between Ms Zealand and Ms Quilty. The subject of the correspondence is the decision to terminate. The correspondence does not relate to policy, is not current and relates wholly to this contract. The documents should be disclosed.
106Documents E59(b), E60, E61, E62, E63(b), E64(b), E65(b), E66(b), E67(b), E69, E70(b), E71(b), E72(b), E73(b) and E74 (at various pages of Confidential Blue Vol 2 as set out in the table supplied at the appeal) are versions of the same document being a draft Cabinet Minute in January 2008. The proposal concerns the assessment of ERG's remedial programme and options for moving forward with the "Tcard project". Most parts of the documents are concerned with the contract with ERG and proposed steps under it. Some paragraphs can be seen to be concerned with wider policy and conduct not directly related to the contract. The versions must be looked at individually as there are variations. Some parts assess the future by reference to contemplated steps under the contract. The following paragraphs of the following documents should be disclosed as they are not concerned with policy, are not current and are concerned only with this contract and its administration or, while dealing with the future, do so by reference to assessing conduct under the contract and are thereby substantively relevant to that question:
E59(b) (pp 640-645): cll 3.1, 3.1.1-3.1.5, 4.1-4.22, 5.1-5.3, 6.1, 6.2 (though there may be legal professional privilege claimable over parts of this material), 7.2.
E60-E61 (pp 646-656 and 657-667): cll 3.1-3.1.6, 4.1-4.16, 5.1-5.3.5 (legal professional privilege may exist), 5.4-5.10, 6.1-6.3. (As to cl 4.10, see below.)
E62 and E63(b) (pp 670-680 and 683-693): cll 3.1-3.5, 3.10, 4.1-4.21, 5.1-5.3 (legal professional privilege may exist), 5.4-5.11, 6.1-6.1.4, 6.2, 6.3. (As to cl 4.13, see below.)
E64(b) (pp 696-707): cll 3.1-3.6, 4.1-4.19, 5.1-5.11 (legal professional privilege may exist), 6.1-6.3. (As to cl 4.12, see below.)
E65(b) (pp 710-724): cll 3.1.1-3.1.7, 4.1-4.17, 5.1-5.11 (noting the possibility of legal professional privilege), 6.1-6.3. (As to cl 4.12, see below.)
E66(b) (pp 725-746): These are two emails (pp 728-729) concerning drafting and an attached draft (pp 730-746). There appear to be some questions of policy dealt with in the emails, though minor, or they concern parts of the minute not to be disclosed. On balance, the immunity attaches. As to the clauses in the draft, the following should be disclosed: 3.1.1-3.1.7, 4.1-4.19, 5.1-5.9 (noting the possibility of legal professional privilege), 6.1-6.3. (As to cl 4.12, see below.)
E67(b) (pp 749-759): cll 3.1-3.5, 4.1-4.21, 5.1-5.11 (noting the possibility of legal professional privilege), 6.1-6.3. (As to cl 4.13, see below.)
E69 (pp 763-772): cll 3.1.1-3.1.6, 4.1-4.19, 5.1-5.9 (noting the possibility of legal professional privilege), 6.1-6.3. (As to cl 4.12, see below.)
E70(b) (pp 774-784): cll 3.1.1-3.1.6, 4.1-4.19, 5.1-5.10 (noting the possibility of legal professional privilege), 6.1-6.3. (As to cl 4.12, see below.)
E71(b), E72(b), E73(b) and E74 can be dealt with in like fashion.
107As to the paragraphs variously numbered 4.10, 4.12 and 4.13 which are referred to above and which should be disclosed, these paragraphs amended a report by the firm of a Mr North. That report has been disclosed. They also concern the separate question to which I refer below.
108There are various documents said to be correspondence "attaching and/or revealing" the contents of the Cabinet Minute dealt with above at E59(b) etc. They are dealt with individually using the criteria employed hitherto:
E59(a) (p 639): an otherwise innocuous document of no currency. It should be disclosed.
E62(a), E63(a), E64(a), E65(a), E66(a) E67(a) and E68 (pp 668-669, 681-682, 694-695, 708-709, 725-727, 747-748 and 760-762 of Confidential Blue Vol 2): an email exchange relevantly concerned with a part of the minute not to be disclosed. The immunity attaches.
E70(a), E71(a), E72(a) and E73(a) (pp 773, 785, 797 and 809 of Confidential Blue Vol 2): an email that deals with changes to the minute, some parts being disclosed and others not. Given that reference is mostly to parts not disclosed and given the lack of relevant content in the balance, the immunity attaches.
109Document E34(b) (pp 370-375 of Confidential Blue Vol 1) is a power point presentation to the Budget Cabinet Committee of August to September 2007. The presentation is related to the contract, though it concerns policy issues and future action to a degree. It is concerned with steps to be taken under the contract. It is directed in substance to parts of the Cabinet Minute that I would order to be disclosed. It should be disclosed.
110Confidential Exhibit CE5 to the affidavit of Mr Miller dated 12 May 2010 is a Ministerial briefing note (otherwise found at Confidential Blue Vol 4 pp 1825-1830). The document appears to be a 2007 document. There are highlighted parts that are almost unreadable. The first appears to relate to the contract, to have no policy content and, subject to legal professional privilege should be disclosed. The second highlighted portion appears to concern policy and the immunity attaches. Sections 1 and 2 of the note concern the contract and work under or related to it. They should be disclosed. As to the action summary on pp 1829-1830, PA1 and PP1 concern the contract and should be disclosed. The balance of the note and the action summary concern policy and operational matters to which the immunity legitimately attaches.
111Document E33(c) (Confidential Blue Vol 1 p 368) is comprised of two emails between the CEO of the PTTC (Ms Zealand) and Ms Quilty. They concern the power point presentation which should be disclosed. Thus the emails should be disclosed.
112There are no documents E28, E29, E35, E46 or E47. There are two documents labelled E55(a) at pp 613 and 614-623 of Confidential Blue Vol 2. One is an email and the other appears to be an attachment to that email. I have dealt with each of these documents above as E55(a)(1) (p 613), the email, and E55(a)(2) (pp 614-623), the attachment.