Graham Charles Evans v John Fairfax and Sons Limited (Receivers and Managers Appointed); Alan Ramsey and John Alexander [1992] ACTSC 117; (1992) 110 FLR 411 (23 November 1992)

SUPREME COURT OF THE ACT

GRAHAM CHARLES EVANS v. JOHN FAIRFAX AND SONS LIMITED (RECEIVERS AND MANAGERS
APPOINTED); ALAN RAMSEY and JOHN ALEXANDER
No. SC 243 of 1990
Number of pages - 15
Evidence
[1992] ACTSC 117; (1992) 110 FLR 411

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

Evidence - Subpoenae documents - Relevance - Public interest - Protecting the public service - Confidentiality - Balanced against interests of Justice - Documents relating to other applicants for Secretary and Deputy Secretary of various departments.

Defamation Act 1974 (NSW), s.22

Public Service Act

Sankey v. Whitlam [1978] HCA 43; (1978) 142 CLR 1

Young v. Quin (1985) 4 FCR 483

Burmah Oil Co Ltd v. Governor and Company of the Bank of England and Another [1979] UKHL 4; (1980) AC 1090

Alister v. R [1983] HCA 45; (1984) 154 CLR 404

Science Research Council v. Nasse (1980) AC 1028

Commonwealth of Australia v. Northern Land Council (1991) 103 ALR 267

HEARING

CANBERRA, 13 November 1992
23:11:1992

Counsel for the Plaintiff: Mr R Refshauge

Instructing solicitors: Messrs Macphillamy Cummins and

Gibson

Counsel for the Defendants: Mr M Lynch

Instructing solicitors: Messrs Freehill Hollingdale
and Page

Counsel for Commonwealth: Mr T Howe

Instructing Solicitors: Australian Government
Solicitor

ORDER

The Court orders that:
1. The Secretary be permitted to respond to a Subpoena for Production of Documents issued by the defendants to the Department of Prime Minister and Cabinet by way of producing copies of the documents held by him within the terms of the Subpoena with certain information deleted therefrom (pertaining to the identity of the contenders for appointment to the Departmental Secretarial positions set out in paragraph 2 of the Schedule to the said Subpoena) on the grounds that it would be contrary to the public interest to disclose such information.

2. Counsel and solicitors for the parties to have unrestricted access to the documents including the right to take copies of the purposes of these proceedings only.

3. The parties have access to the documents only by being shown the documents by their respective legal advisers for the purpose of giving instructions to their legal advisers in these proceedings.

DECISION

HIGGINS J. The defendants have issued subpoenae calling upon the Secretary, Department of Prime Minister and Cabinet, Department of Treasury and Department of Transport and Communications to produce certain documents.

2. Most are produced without objection. There is no objection to inspection thereof, at least by legal advisers to the parties. The terms as to access of those documents are in the form set out in a document entitled "Short Minutes of Order".

3. The Commonwealth appears to object to further production or inspection. The documents withheld, unless this Court otherwise orders, are documents identifying or tending to identify other contenders for and referees of contenders for the positions of Deputy Secretary and Secretary of various departments to which offices the plaintiff was appointed.

4. Mr Howe, for the Commonwealth, submits that it would be "contrary to the public interest" to require those documents to be produced. He further contends that, in any event, the information sought was obtained on an "in-confidence" basis and that, for reasons both of honouring that expectation and for privacy reasons, that production should be refused. It is also suggested that the documents have no or no sufficient legitimate relevance to require their production.

The issues in the Action
5. It is apparent that, whether or not there is a public interest or a privacy or confidentiality interest in refusing disclosure, disclosure will not be ordered if it appears that the documents in question have no relevance to the issues in the action. Further, the degree of relevance is an important issue in the exercise of any discretionary judgment to refuse or require production.

Relevance to the Issues
6. The allegedly defamatory matter is set out in the Further Amended Statement of Claim. I need not set it out. For the purposes of this application I assume that the material is capable of bearing the defamatory imputations pleaded.

7. I set out those imputations.

"6. (a) The plaintiff's career advancement in the Commonwealth
Public Service was only the result of the patronage from the Prime
Minister.
(b) The plaintiff, in his capacity as Secretary of the Department
of Primary Industry and Energy lacked the confidence of his
Minister, Mr John Kerin.
(c) The plaintiff was a person whose successful career in the
Public Service was due more to his enjoyment of a nasty system of
patronage than to anything else.
(d) The plaintiff was prepared to advance his career through
cronyism rather than on the merits of the performance of his
duties."

8. The plaintiff also seeks aggravated and exemplary damages and has particularised certain matters claimed to entail such finding. Those matters include a proposition that the matter complained of was false (insofar as it conveyed the imputations complained of) and that the imputations allegedly conveyed were also false.

9. In their Amended Defence, the defendants do not admit publication of the matter complained of. They deny that it conveys or is capable of conveying the pleaded imputations.

10. Qualified privilege at common law is pleaded. It is not particularised in the pleading as it should be. Section 22 of the Defamation Act 1974 (NSW) is also pleaded as are other "information" defences as alternative to the unspecified qualified privilege defences.

11. In Answers to Interrogatories, none of the defendants admits to an intention to convey any of the imputations complained of. The first and second defendants expressly deny any intention to convey any of the imputations complained of. They further assert that there was no truth in any of them.

12. Although it is not directly relevant, the first and second defendants did assert that they intended to convey the "imputations" that

"(a) ... the plaintiff and a number of other competent and
hardworking public servants employed as members of the Prime
Minister's personal staff enjoyed a measure of patronage from the
Prime Minister.
(b) ... working on the Prime Minister's personal staff was a
fillip to the careers of the plaintiff and of a number of other
competent and hard-working public servants chosen by the Prime
Minister to work for him."

Obviously, neither of those "imputations" could be regarded as defamatory of the plaintiff. None of the parties contended to the contrary.

13. In his Amended Reply the plaintiff pleaded that the matter complained of was published with malice.

14. The particulars of matters said to support the allegation of malice were similar to those alleged to support the claim for aggravated or exemplary damages.

15. In the light of the answers given to interrogatories it could not be asserted by any of the defendants that any of the plaintiff's appointments to high office in the Public Service was tainted by any improper patronage from the then Prime Minister or was otherwise inappropriate in the sense particularised by the plaintiff.

16. Of course, the material in question could be relevant to the question of the reputation of the plaintiff generally. It has some peripheral relevance to that issue to know who expressed opinions of and concerning him and who the plaintiff was favourably compared with.

The Public Interest - Protecting the Public Service
17. The question of "public interest" privilege was comprehensively reviewed by the High Court in Sankey v. Whitlam [1978] HCA 43; (1978) 142 CLR 1. The documents in that case were Cabinet papers concerning the authorisation given to the then Minister for Minerals and Energy to borrow money from overseas sources.

18. Gibbs A.C.J. (38-46) examined the general rule. The primary question is injury to the public interest. The public interest has a number of aspects. There is the public interest in the due administration of justice as well as the public interest in protecting the integrity and efficiency of the Australian (and any other) Public Service.

19. In deciding whether damage will or might be done to the public interest by disclosing details of the selection process of candidates for Deputy Secretary and/or Secretary of Australian Government Departments of State, due regard will be accorded the views of relevant Ministers and/or senior Public Servants (see Young v. Quin (1985) 4 FCR 483, 59 ALR 225).

20. Lord Scarman's speech in Burmah Oil Co Ltd v. Governor and Company of the Bank of England and Another [1979] UKHL 4; (1980) AC 1090, 1143 was referred to. His Lordship said

"If a minister of the Crown asserts that to disclose the contents
of a document would, or might, do the nation or the public service
a grave injury, the court will be slow to question his opinion or
to allow any interest, even that of justice, to prevail over it."

I consider that statement to be contrary to the principles accepted in Sankey v. Whitlam. It is for the court asked to order disclosure to decide for itself, with the benefit of the inspection of documents if necessary, whether production of documents, although relevant and admissible, will be refused on public interest grounds. The "interests of justice" are not inconsistent with the public interest in the efficiency and integrity of the public service. It is a matter of weighing the countervailing public interests.

21. It is usually possible to reconcile those interests by permitting substantial disclosure (see, for example, Alister v. R [1983] HCA 45; (1984) 154 CLR 404, per Gibbs C.J., 414-415). Only that information which, if disclosed, harm the public interest should be totally denied. Limited disclosure, to legal advisers only, may sometimes be necessary to resolve the conflict between the various aspects of the public interest involved.

22. In this case, I acknowledge the assistance afforded by an affidavit from Dr Michael Keating, dated 12 November 1992.

23. Dr Keating is the Secretary to the Department of the Prime Minister and Cabinet. Effectively, he is the senior departmental head. It is the responsibility of his office to advise the Prime Minister on filling any vacancy in the office of Secretary (or Deputy Secretary) of Commonwealth Departments. That advice includes reports of consultation with relevant Ministers of State. Any such appointment is then made by the Governor-General on the advice of the Prime Minister. There is no room for the usual appointment or appeal processes applicable to lesser public service office.

24. Reports containing assessments of the various potential appointees are regarded as confidential and kept securely accordingly.

25. The fact that those documents are treated confidentially and securely, of course, is not, of itself, a reason for refusing the disclosure in question.

26. Dr Keating, however, does provide reasons why, in his opinion, the material sought to be withheld should not be disclosed. I set out the relevant portions of his affidavit.

"10. Of the eight people other than Mr Evans who were considered in
connection with the appointments, four remain at the
Secretary/Associate Secretary level. The disclosure of any comments
on them and even of the fact that they were considered but were not
selected for the appointments, as well as being a substantial breach
of their privacy, has the potential for greater damage than the
disclosure of similar information relating to less senior officers in
the Service because their effectiveness as leaders and managers of
their organisations is especially dependent on their being held in
high regard and having the complete confidence of their colleagues and
staff. These senior officers should be permitted to exercise their
leadership responsibilities free from the disclosure of any such
negative inferences or comments about them.
11. It is my strongly held opinion that it would be contrary to the
public interest for any parts of the listed documents that identify
persons (other than the plaintiff, Mr Graham Evans) who were being
considered in connection with these appointments to be disclosed. My
reasons for holding this view are set out below:
(a) it is essential that the person preparing these reports be
able to provide comments on possible appointees with the utmost
candour and in complete confidentiality; the discrete and special
processes of Secretary appointments (recognised by the Pubic
Service Act) would be impeded if the confidentiality of the
information for which privilege is claimed was not protected;
(b) disclosure of material identifying persons who in the event
were not recommended for appointment including comments on them of
a personal nature about their suitability for the appointment
could have the following adverse consequences:
(i) information that was prepared at a specific time and for a
particular purpose, which may now be out of date and misleading
being taken out of context;
(ii) invasion of privacy and embarrassment of the person who
was the subject of the comment, the person who held the view and
the person preparing the report;
(iii) comprising continuing working relationships at the
highest levels of government;
(iv) compromising the standing and effectiveness of the person
commented on among his or her colleagues and staff, especially
when, as is the case here, many of the persons named continue to
holder (sic) senior offices in Public Service organisations;
(v) compromising the effective operation of the appointment
process for future occasions."

27. Insofar as Dr Keating fears that possible disclosure of the material in judicial proceedings to which such material is relevant will cause referees and others to refuse to, or modify, comment, I think such fears are unrealistic. Embarrassment, lack of confidence by junior officers in senior officers whose attributes are criticised, and others, are possible. Misuse and misinterpretation of information is always possible. It is, however, no more likely in the case of public officeholder employer than in the case of private employment. It is possible to avoid or limit such consequences by restricting the area of disclosure.

28. Apart from questions of privacy and breach of expectations of confidentiality, it would usually be in the public interest to disclose the processes of such appointments, where there is a proper reason to do so. This would be particularly so if it was alleged that the appointment in question was unlawfully or improperly effected.

29. I reject the view that the public interest in the integrity and efficiency of the public service requires disclosure to be withheld.

Non-disclosure of private and/or confidential information
30. Irrespective of whether there is any public interest in keeping secret the processes for the selection of the most senior public servants, there is a privacy issue. An example is Science Research Council v. Nasse (1980) AC 1028. The issue was similar in that case although the appointment in question was to a non-government agency. There is a discretion to refuse production if the right to privacy and/or the expectation of confidentiality of individuals would be unduly prejudiced by disclosure.

31. I consider that, in this case, the considerations advanced by Dr Keating, including the current relevance of some opinions expressed in relation to some serving officers make it undesirable to order production. It would, however limited the disclosure, invade the right to privacy of the individuals concerned and frustrate their expectations of confidentiality.

32. Nevertheless, such rights and expectations will be modified if it is in the interests of justice that they should be.

The balancing process
33. The balancing of the defendants' interest in disclosure against the rights and legitimate expectations of other candidates and referees is now required.

34. An example of that process may be seen in Commonwealth of Australia v. Northern Land Council (1991) 103 ALR 267.

35. As I have noted, I do not find any likely adverse effect on the public interest by reason of the nature of the processes of selection to which the documents relate. I do accept that there are current issues of invasion of privacy and breach of legitimate expectations of confidentiality.

36. The question is whether those adverse effects are outweighed by the seriousness of the issues to which the subject material relates, the likelihood of an affect on the outcome of the case following production and, consequently, the likelihood of non-production creating injustice.

37. In this case, although I can perceive an issue as to the extent of the plaintiff's reputation, given the class of persons with whom he was being compared and by whom he was being assessed. However, the identity of the particular persons in question seems to me to be of only marginal relevance. It follows that I can perceive no real likelihood that the information in question will affect the outcome of the case or that refusal of production, given the detail already produced, will create any likelihood of injustice.

38. It remains a matter of discretion. In the exercise of that discretion, I give preference to the considerations referred to by Dr Keating in sub-paragraphs 11 (b)(i), (ii), (iv) of his affidavit and to the reasonable expectation of confidentiality by commentators and unsuccessful candidates.

39. I grant the orders sought by Dr Keating, deleting reference to "public interest" grounds.

40. I make the orders as to restricted access agreed to by the parties in relation to the remaining material produced.

41. I will hear the parties as to costs.