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Federal Court of Australia |
Last Updated: 8 March 1999
EVIDENCE - discovery - civil proceedings - claim of public interest privilege - whether documents subject of claim able to be characterised as Cabinet documents - whether public interest in administration of justice outweighs public interest in maintaining confidentiality -whether relevance of Cabinet documents to the proceedings justifies disclosure - effect of partial disclosure to another party and his solicitor and counsel - whether maintenance of immunity would offend principles of natural justice.
Evidence Act 1995 (Cth), s 130
Workplace Relations Act (1996) (Cth), s 298K, s298L
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, considered
The Commonwealth of Australia v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604, considered
State of New South Wales v Ryan, unreported Federal Court of Australia, Burchett, Hill and Madgwick JJ, 2 September 1998), considered
Australian National Airlines Commission v The Commonwealth of Australia [1975] HCA 33; (1975) 132 CLR 582, discussed
MARITIME UNION OF AUSTRALIA & ORS, v GERALDTON PORT AUTHORITY & ORS
WAG 101 OF 1999
R D NICHOLSON J
25 FEBRUARY 1999
SYDNEY (Heard in PERTH)
IN THE FEDERAL COURT OF AUSTRALIA BETWEEN: First Applicant
PETER WINCH-BUIST, PAUL ARTHUR, CLIVE LAURISTEN, STEVE PENNEY
Second Applicant AND: First Respondent
B E and S G BROWN NOMINEES PTY LTD (TRADING AS GERALDTON SHIPPING AGENCIES)
Second Respondent
ERIC CHARLTON
Third Respondent
MURRAY CRIDDLE
Fourth Respondent JUDGE:
WESTERN AUSTRALIA DISTRICT REGISTRY WAG 101 OF 1998
MARITIME UNION OF AUSTRALIA
GERALDTON PORT AUTHORITY
R D NICHOLSON J DATE OF ORDER: 25 FEBRUARY 1999 WHERE MADE: SYDNEY ( Heard in PERTH)
THE COURT ORDERS THAT:
Copies of documents 3, 4, 5 and 6 in the fourth respondent's list of documents be produced forthwith for inspection by the Court.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| WESTERN AUSTRALIA DISTRICT REGISTRY | WAG 101 OF 1998 |
|
BETWEEN: | MARITIME UNION OF AUSTRALIA
First Applicant
PETER WINCH-BUIST, PAUL ARTHUR, CLIVE LAURISTEN, STEVE PENNEY Second Applicant |
|
AND: | GERALDTON PORT AUTHORITY
First Respondent
B E and S G BROWN NOMINEES PTY LTD (TRADING AS GERALDTON SHIPPING AGENCIES) Second Respondent
ERIC CHARLTON Third Respondent
MURRAY CRIDDLE Fourth Respondent |
JUDGE:
R D NICHOLSON J DATE: 25 FEBRUARY 1999 PLACE: SYDNEY (Heard in PERTH )
The documents
2 The documents are described on behalf of the fourth respondent as follows:
"(a) Document 3 is a Summary Sheet [dated 10 August 1998] prepared for the use of the Cabinet Standing Committee on Labour Relations. That document deals with the implementation of the enhanced redundancy package at the Geraldton Port Authority and the Port of Wyndham. The document contains a summary of the issue, the costs of the proposal, the Committee's recommendation, and a summary prepared by the Department of Productivity and Labour Relations.3 On behalf of the fourth respondent and subject to two exceptions, a claim of public interest privilege is maintained by the fourth respondent in respect of the documents the subject of the motion. The two exceptions in relation to which the claim for that privilege is not maintained are:
(d) Document 4 consists of a Cabinet Decision Sheet [dated 9 March 1998] dealing with the issue of "Southern Ports - Enhancement of Private Sector Involvement", a Confidential Cabinet Summary Sheet, and a submission from the Minister for Transport to the Premier (In Cabinet).
(c) Document 5 consists of a Cabinet Decision Sheet [dated 20 June 1995] dealing with the issue of `The Role of Western Australia's Port Authorities', a Confidential Cabinet Summary Sheet, and a submission from the Minister for Transport to the Premier (In Cabinet).
(d) Document 6 consists of a Cabinet Decision [dated 25 May 1998] dealing with the issue of the Port Authorities Bill 1998 and consequential legislation, a Confidential Cabinet Summary Sheet, and a submission from the Minister for Transport to the Premier (In Cabinet)."
"(a) the facsimile coversheet dated 2 August 1998 included within Document 3.Public interest privilege
(b) the attachment head "Principles to Guide Western Australia's Port Authority Development Through the 90's" which is part of Document 4."
4 The requirements of the law for public interest privilege to be established are not in dispute between the parties. It is common ground that there are no immutable classes of documents to which absolute privilege is to be accorded. The court is required to determine whether on balance the public interest calls for production or non-production. For the fourth respondent it is claimed that all the documents to which the claim relates are "Cabinet documents" requiring the application of public interest privilege. The content of the privilege was described in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 95-96 by Mason J as follows:
"It has generally been assumed that important State documents relating to high level policy decisions, in particular Cabinet decisions and Cabinet papers, are immune from production. It is now recognised that in considering an objection to production on the ground of Crown privilege the court must evaluate the respective public interests and determine whether on balance the public interest which calls for non-disclosure outweighs the public interest in the administration of justice that requires that the parties be given a fair trial on all the relevant and material evidence. In determining this question the court, though it will give weight to the Minister's opinion that the documents should not be produced, is entitled to inspect the documents and form its own conclusion upon the question whether the public interest will be better served by production or non-production.
Cabinet decision and cabinet papers do not stand outside the general rule that requires the court to determine whether on balance the public interest calls for production or non-production. They stand fairly and squarely within the area of application of that rule."
See also Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404.
5 The applicable principles were also further considered by the High Court in The Commonwealth of Australia v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604. There it was said by the majority at 614 that:
"It should be observed at the outset that the documents for which the Commonwealth claims immunity from disclosure are documents which record the actual deliberations of Cabinet or a committee of Cabinet. They are not documents prepared outside Cabinet, such as reports or submissions, for the assistance of Cabinet. Documents of that kind are often referred to as Cabinet documents."The majority continued by stating that in relation to the deliberations of Cabinet it had never been doubted that it is in the public interest that such deliberations should remain confidential in order that decision-making and policy making by Cabinet should be uninhibited (at 615-616).
6 The majority distinguished between claims for public interest immunity in relation to "class" claims, such as Cabinet documents, and "contents" claims. In respect of documents recording the deliberations of Cabinet, the majority considered it hardly contestable that they fell within a class of documents in respect of which there were strong considerations of public policy militating against disclosure regardless of their contents. Nevertheless even in that case the claim of public interest immunity must be weighed against the competing public interest of the proper administration of justice: Sankey v Whitlam at 43 per Gibbs ACJ; at pp 63-64 per Stephen J and pp 98-99 per Mason J.
7 At 618 the majority continued:
"Nevertheless, where it is established that a document belongs to a class which attracts immunity, a court will lean initially against ordering disclosure. Whether the circumstances of a particular case will be sufficient to displace the considerations which favour immunity depends to a large extent upon the nature of the class. 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.8 On the question of whether inspection of the contents of documents in issue is necessary in order to determine the application of the claimed immunity the majority said at 619:
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."
"It follows that, in our view, it is only in a case where there are quite exceptional circumstances which give rise to a significant likelihood that the public interest in the proper administration of justice outweighs the very high public interest in the confidentiality of documents recording Cabinet deliberation that it will be necessary or appropriate to order production of the documents to the court. Where such exceptional circumstances do exist, the appropriate course to be followed will ordinarily be for the judge personally to inspect the documents for the purpose of deciding whether the relevance of the material to the proceedings in which disclosure is sought is sufficient, even in those exceptional circumstances, to justify disclosure. Having regard to the strength of the claim for immunity, a judge ought not order the disclosure of the contents of documents of that class unless the judge is satisfied that the materials are crucial to the proper determination of the proceedings."It is common ground that the present proceedings are civil proceedings.
9 On the significance of discovery of documents in relation to which a claim of public interest privilege is made it was said in Northern Land Council at 613-614 by the majority that the effect of discovery of the notebooks there in issue was that it could be assumed they contain entries which related to matters in the action in the sense that they would, or would lead to a chain of inquiry which would, either advance the Northern Land Council's case or damage that of the Commonwealth. However, as was said by the Full Court in State of New South Wales v Ryan, unreported Federal Court of Australia, Burchett, Hill and Madgwick JJ, 2 September 1998) the effect of an admission of discoverability leaves it an open question whether particular documents in dispute are of the kind or include entries of the kind so described by the majority of the High Court.
10 In Ryan the Full Court emphasised that both in the case of documents recording the deliberations of Cabinet and in the case of other Cabinet documents, the question for the Court is "whether the relevance of the material to the proceedings in which disclosure is sought is sufficient ... to justify disclosure".
11 Furthermore, where the Court has to weigh the competing public interest it is required in doing so to give weight to the assertion of a responsible representative of government that there is a public interest which would be placed in jeopardy by the production of the documents: Sankey v Whitlam at 44-46 per Gibbs ACJ; at 59-60 per Stephen J quoting a statement by Lord Pearson to similar effect and at 96 per Mason J, cited by the Full Court in Ryan.
Evidence Act provision
12 The principles reflected in these decisions are now to be found set out in s 130 of the Evidence Act 1995 (Cth). In Ryan the members of the Full Court held that they did not perceive any relevant difference in relation to a claim for public interest immunity for Cabinet papers at common law as expressed by the High Court in Sankey v Whitlam and in Northern Land Council and under the provisions of s 130. The Full Court also held that s 130 was not meant to achieve a general setting aside of the exposition of the law in Sankey v Whitlam.
13 Subsection 130(5) provides that the Court "is to take into account ... the importance of the information or the document in the proceeding".
14 Section 130 of the Evidence Act by its terms is concerned only with the admission into evidence (or exclusion from evidence) of documents in relation to which public interest privilege is advanced. It does not deal directly with claims for public interest privilege in relation to the discovery and inspection of documentation. Nevertheless it has been accepted in decisions of this Court that, as the adducing of evidence at a hearing and the ancillary processes thereto such as discovery, are functionally linked, the common law insofar as it applies to those ancillary processes needs to be adapted to the principles adopted by the Evidence Act in relation to the adoption of evidence: cf Adelaide Steamship Company Ltd v Spalvins (1998) 152 ALR 418 and Telstra Corporation Ltd v B T Australasia Ltd (1998) 156 ALR 634.
Onus
15 There is a difference between the parties in relation to the question of onus. On behalf of the applicants it is submitted that, relevance having been conceded, the onus is upon the fourth respondent to demonstrate that it is necessary to keep the "information secret": Young v Quin (1985) 4 FCR 483 per Bowen CJ at 485. On behalf of the fourth respondent it is submitted that because the documents are Cabinet documents, the applicants bear the evidentiary onus of establishing the exceptional circumstances referred to by the majority in Northern Land Council. In my opinion these principles are not conflict. The initial onus is upon the fourth respondent to establish that the claim relates to documents which are arguably "Cabinet documents" (subject to the necessity for inspection to establish the same). Once that appears to be the case, the onus shifts to the applicants to establish the exceptional circumstances required to show the public interest in the administration of justice in having the documents made available outweighs the public interest in maintaining the confidentiality of the documents.
Cabinet documents
16 The first question then is whether the documents as described (without inspection) are such as to arguably appear to be within the description of Cabinet documents. It will be recalled that such description was referred to in Northern Land Council at 614 as including documents which record the actual deliberations of Cabinet or a committee of Cabinet and also documents prepared outside Cabinet, such as reports or submissions, for the assistance of Cabinet.
17 Returning to the description of documents, I consider it discloses on its face the following:-
(a) Document 3, being a summary sheet prepared for the use of a Cabinet committee, is a document prepared outside Cabinet for the assistance of Cabinet and as such falls within the general description of Cabinet documents. It is not, however, a record of an actual deliberation of Cabinet or a committee of Cabinet and that point is conceded for the fourth respondent.
(b), (c) and (d) fall into three categories:
(i) The Cabinet decision sheets which apparently are records of actual deliberations of Cabinet - that is the highest order of document for which the public interest immunity can be claimed.
(ii) The confidential Cabinet summary sheets are documents prepared outside Cabinet for the assistance of Cabinet subject to the question whether reference to them has been made in the Cabinet decision sheets incorporating them into the decision (given that they are referred to as part of one document).
(iii) The submission from the Minister for Transport to the Premier in Cabinet is a document prepared outside Cabinet being a report for the assistance of Cabinet subject also to the question whether reference to it occurs in the Cabinet decision sheet so as to effectively incorporate the submission into the decision.
18 For the fourth respondent it is contended that the documents in category (b), (c), (d) (ii) and (iii) fall within the description of the words "the actual deliberations of Cabinet" referred to by the majority of the High Court in Northern Land Council at 614 ff. In my opinion that would only be the case if the documents in (b), (c) and (d)(i) incorporated by reference (ii) or (iii) into the Cabinet decision sheet. For example, the Cabinet decision sheet may record that as a consequence of considering and debating, accepting or rejecting aspects of the summary sheet or the submission from the Minister, Cabinet decided such and such. Short of such a reference in the Cabinet sheet itself (as an actual deliberation of Cabinet), I do not consider that the documents in categories (b), (c), (d)(ii) and (iii) can fall within that description. I do not accept the submission for the fourth respondent that documents (b), (c), (d)(iii), being submissions of the Minister's view, must thereby necessarily be characterised as actual records of Cabinet deliberations.
19 The matter would seem to be of limited materiality in any event. The privilege will be maintained at its highest in relation to actual deliberations of Cabinet, only very exceptional circumstances having the potential (and perhaps not at all in civil proceedings) to outweigh the public interest in confidentiality. In relation to documents prepared outside Cabinet for the assistance of Cabinet in the connection with its decision-making, exceptional circumstances will be required to that end. The critical question is whether there is a case to support the contention for the applicants that the public interest in the administration of justice requiring the documents to be made available outweighs the public interest in maintaining their immunity.
Applicants' claim
20 The argument of the applicants is that the nature of the case brought by them can only be established in relation to the fourth respondent if the documents are made available and that, as the case alleges conspiracy by a Cabinet member, the public interest in the due administration of justice requires that the claim for immunity be not allowed. It is necessary therefore to examine the nature of the applicants' case.
21 The claim which the applicants seek to bring in respect of the fourth respondent is as follows. The fourth respondent was from on or about 28 July 1998 the Minister for Transport in the Government of the State of Western Australia. The third respondent was between February 1993 and July 1998 the Minister for Transport in the same government. In par 14 of the statement of claim as amended it is alleged:
"14. From about September 1997 the GPA, Mr Charlton and Mr Criddle have wrongfully conspired and combined to injure the applicants by unlawful means (`the conspiracy').22 Then follows a pleading in par 15 that in pursuance of the conspiracy the first, third and fourth respondents did certain overt acts. As pleaded those acts include reference to certain expressions ("the Expressions"), namely:
Particulars The First, Third and Fourth Respondents agreed to restructure the terms and conditions under which stevedoring employees generally would work at the Port, whereby the positions of the second applicants would be altered to their prejudice and the second applicants would be injured in their employment and the first applicant would be injured by reducing its membership and its role."
"Direct employer/employee relationships".Paragraph 16 pleads:
"Continuity of service"
"No third party"
Employment relationships to which only the employer and the employee are signatories".
"Individual workplace agreements" or simply "workplace agreements".
Any reference to requirements re the Integrated Port Labour Force".
"16 The conspiracy referred to in Paragraph 14 was entered into for the purpose of injuring the Applicants.Paragraph 17 pleads that the overt acts as particularised in par 15 were unlawful because they were done for the reason (or reasons which included the reason) that the second applicants were members of the first applicant and entitled to the benefits of an award known as the "Western Australian Regional Ports Integrated Labour Force (Geraldton Port Authority) Award 1995" and an agreement known as the "Geraldton Port Authority Integrated Port Labour Force Agreement 1995". Paragraph 17 also alleges that certain acts particularised were unlawful because they involved or constituted a contravention of s 71 of the Work Place Agreements Act (WA) and/or a contravention of s 170WG of the Work Place Relations Act (Cth).
Particulars
The purpose of the conspiracy was to achieve a position where stevedoring services were provided at the Port of Geraldton by persons in employment arrangements which involved a direct employer-employee relationship, which did not involve the MUA as a party so that the MUA had no, or no significant, role in protecting or enhancing the interests of its members. Its purposes was also to remove or hinder the ability of the Employees to negotiate collectively and to reduce their conditions of employment and diminish their employment security."
23 In respect of the third and fourth respondents par 34 pleads:
"34 By virtue of the matters raised in paragraphs 14, 15, 16, 17, 18, 19, 20, 28, 29, 30, 31 and 32 the conduct of the Respondents Mr Charlton (until July 1998) and Mr Criddle thereafter, has caused, contributed to encouraged and/or influenced and continues to cause contribute to, encourage and/or influence a contravention or contraventions of s.298K of the Workplace Relations Act 1996."Defences
24 In par 8 of his defence the fourth respondent denies that he did any of the overt acts pleaded in par 15 in pursuance of any conspiracy or at all. In par 8(d) it is pleaded: "in respect of the first respondent, he acted lawfully at all times in furtherance of the Western Australian Governments policy to reform Western Australian ports." This is particularised as follows:
" (i) The objective of the policy was and remains to ensure that the users of Western Australian ports receive reliable, flexible and cost effective port services operating at world's best practice.The same pleadings appear in the defence of the third respondent.
(ii) The Western Australian Government considered the principal role of port authorities to be the facilitation of trade, which role has to be undertaken in a commercial and efficient manner.
(iii) The Western Australian Government was and remains committed to increasing the role of the private sector in the operation of the whole Western Australian ports as well as the provision of individual port services.
25 Section 298K of the Workplace Relations Act (1996) (Cth) ("the Act") provides in subs (1):
"298K(1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:(a) dismiss an employee;
(b) injure an employee in his or her employment,
(c) alter the position of an employee to the employee's prejudice;
(d) refuse to employ another person;
(e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person."
This is to be read with s 298L which relevantly provides:
The reference to "threaten" in s 298K(1) is to be understood in terms of s 298L(2) which reads:
"298L Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:
(a) is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; or"
...
Applicants contentions
" If:
(a) a threat is made to engage in conduct referred to in subsection 298K(1) or (2); and
(b) one of the prohibited reasons in subsection (1) of this section refers to a person doing or proposing to do a particular act, or not doing or not doing or proposing not to do a particular act; and
(c) the threat is made with the intent of dissuading or preventing the person from doing the act, or coercing the person to do the act, as the case requires;
the threat is taken to have been made for that prohibited reason."
26 For the applicants it is said that by the pleadings in the defences of the fourth and third respondent they have raised the process of policy making as a central issue in the case. If, as the applicants seek to contend, their reasons for implementing such policy included reasons prohibited by the Act, it is submitted that the probability is high that the government policy formulated in Cabinet was based upon reasons which included prohibited reasons. It is said that given the description of documents (b), (c) and (d)(iii) as submissions from the Minister for Transport to the Premier in Cabinet it is open to argument that the government policy was formulated in part upon submissions made by the third and fourth respondents and included reasons prohibited under the Act, including prohibited reasons.
27 The case for the applicants draws attention to sources of evidence in their case to date which is said to support the position of relevance of the documentation for which they contend should be disclosed. The first are passages in affidavits filed which relate to changes to government policy. The first are some paragraphs from an affidavit by the fourth respondent of 23 December 1998 of which par 18 reads:
18. "In my capacity as the Minister for Transport, I have acted to pursue and further the Western Australian Government's policies regarding the reform of Western Australian ports. The objective of these policies was, and remains, to ensure that the users of Western Australian ports receive reliable, flexible and cost efficient port services operating at world's best practice. The Western Australian Government considers the principal role of port authorities to be the facilitation of trade. That role must be undertaken in a commercial and efficient manner. In addition, the Western Australian Government was, and remains, committed to increasing the role of the private sector in the operation of whole Western Australian ports as well as the provision of individual port services.Paragraph 19 of the same affidavit exhibits documents and brochures regarding the Western Australian Government's policies concerned with reforming Western Australian ports. Paragraph 20 refers to port reform policies forming part of the coalition government's election commitments which are exhibited. In other paragraphs (26, 27, 28, 29, 36 and 42) the fourth respondent deposes as to negotiations with the Commonwealth Minister in relation to the Commonwealth Government's offer to allow Western Australia's regional ports access to the Commonwealth Government's Redundancy Program.
19. The Western Australian Government's policies regarding the reform of Western Australian ports has been identified in a number of published documents and brochures, including the following:
(a) A brochure published in November 1995 under the authority of my predecessor, Mr Charlton. That brochure is titled "The Role of Ports in Western Australia - Principles to Guide Western Australia's Port Authority Development Through the 90's". Annexed to this affidavit and marked MJC 3 is a true and correct copy of that brochure
b) A brochure titled "The Way Ahead - Maritime Transport Directions for Western Australia" published by the Department of Transport in December 1995. Annexed to this affidavit and marked MJC 4 is a true and correct copy of that brochure."
28 Next, reference is made to an affidavit of Ms Calder, the senior policy advisor for the fourth respondent who also stated her understanding of the objectives of the Western Australian Government's policies regarding the reform of Western Australian regional ports as being and remaining to ensure that the users of such ports received reliable, flexible and cost effective port services operating at worlds best practice. In par 13 she deposes as to meeting with the fourth respondent to discuss Cabinet endorsement of a decision of the Cabinet's Standing Commission on Labour Relations regarding the enhance stevedoring redundancy package to be implemented at the Geraldton Port Authority and the Port of Wyndham.
29 Finally reliance is placed on passages in an affidavits of the third respondent sworn on 9 February 1999. For the applicants it is said of these paragraphs is that the fourth respondent has put in issue in the arena of litigation the question whether the fourth respondent did no more than rely on Cabinet policy. It is said he seeks not to disclose what was put to Cabinet as to why the policy should be implemented.
30 For the applicants reference is also made to various documents which is said tie the proposals for waterfront reform to government policy. It is said they show the gravamen of the applicants' case is tied back to the policy formulated in Cabinet so that the object of the implementation of that policy becomes significant.
31 This is said for the applicants to be particularly the case because their contentions will be that the third and fourth respondents said publicly and acknowledged in affidavits a number of things which reflected that the policy upon which those respondents relied was implemented for a prohibited reason. The applicants' case will be that the use of the Expressions will support the drawing of an inference to that effect.
Respondents contentions
32 For the fourth respondent the following matters are raised in response:
(1) The government policy referred to in the defence of the fourth and third respondents has been published, is in the public domain and is contained within documents already discovered.
(2) It is not the case that the defence of the fourth or third respondents relies on the "decision-making processes of Cabinet and communications between Ministers and Senior departmental officers" (as the applicants' submission maintain).
(3) There is no evidence before this Court that anything said or done in Cabinet would reveal any improper purpose in these proceedings and that the submissions for the applicants concerning the probability of a prohibited reason appearing in the making of government policy are purely speculative.
(4) The conspiracy claim raised by the applicants against the fourth and third respondents is said to have occurred outside the confines of the Cabinet room so that access to Cabinet documentation cannot be crucial to the conduct of the applicants' case. It is correct that the overt acts relied upon in the relevant pleadings are so described.
(5) There is no allegation that the policy itself is unlawful. There is no suggestion in the pleadings that the making of government policy was for a prohibited purpose but only that the implementation of it was for a prohibited purpose.
(6) The effect of s 298K of the Act is that the policy would only become unlawful if engaged in or threatened to be engaged in by an employer (relevantly here the first respondent) for a prohibited reason. That is, the application of the section depends on the act of doing or threatening to do certain actions for prohibited reasons. It cannot therefore have been the case that in adopting the policy Cabinet could have acted unlawfully pursuant to s 298K(1).
(7) In relation to the Expressions the words themselves are ordinary jargon which cannot translate into something sinister. That of course would be a central issue to be argued in determination of the case.
33 For the applicants it is contended it is irrelevant whether it is the case that the policy is alleged to have been illegal - the question is whether the Cabinet documents are likely to disclose the motive of the alleged conspirators the third and fourth respondents.
Effect of partial publication
34 In the course of argument submissions were also directed to the undisputed fact that documents 4, 5 and 6 had been made available to the third respondent, his solicitors and then copied to his counsel. Apparently all documents have now been returned. It is common ground that both at common law and in accordance with s 130(5)(e) of the Evidence Act 1995 (Cth) the fact of disclosure must be disclosed by the Court in the balancing process. I accept the submissions for the fourth respondent that the nature of the publication of the documents in relation to which privilege is asserted is relatively insignificant in the circumstances of this case. Disclosure was confined to the former Minister for Crown who was, at the time the documents were brought into existence, the Minister for Transport. The documents have been seen only by his solicitors and counsel, there has been no general unrestricted publication of the documents concerned.
35 Nevertheless, for the applicants it is submitted that because publication of such a character has taken place, natural justice requires that such documents should be made available to the other parties in the proceedings. This is said to be supported by reference to Australian National Airlines Commission v The Commonwealth of Australia [1975] HCA 33; (1975) 132 CLR 582 at 592-593 and Ex parte Brown; Re Tunstall (1966) 84 WN (Pt 2) (NSW) 13, the latter case being discussed in (1996) 40 ALJ 235. The rationale in the former case was that a cockpit voice record (CVR) tape in a civil action for damages following a collision between two aircraft was material which could have a decisive influence on the outcome of the action. In the present case, if it is arguable that the documents could be characterised as having a decisive influence on the outcome of the action, the exceptional circumstance would be established where the public interest in the administration of justice would outweigh the public interest in maintaining confidentiality, except in the case of documents actually recording the deliberations of Cabinet where very exceptional circumstances would be required. The consequence would be that if the documents had that character the litigation would not proceed without the parties having been able to inspect the documents.
Weighing the balance
36 It is necessary in the light of these contentions for the Court to decide whether the relevance of the material to the proceedings in which disclosure is sought is sufficient to justify a disclosure.
37 The answer to that question may be tested by positing what would be the probable effect on the applicant's case if (1) the documents (b), (c) and (d)(iii) disclose that either the third or fourth respondent had recommended the policy for a reason prohibited by the Act and/or (2) the documents (b), (c) and (d)(i) being the Cabinet decision sheets adopted in terms the Minister's submission.
38 The case which the applicants must establish in relation to the fourth respondent (and the third respondent until July 1998) is that they wrongfully conspired and combined to injure the applicants by unlawful means and that they "caused, contributed to, encouraged and/or influenced" (and in the case of the fourth respondent continues to do so) a contravention or contraventions of s 298K of the Act.
39 If the documents which they seek disclose the matters (1) and (2) above that arguably could make more probable the drawing of the inferences which the applicants' case will seek to have made from the Expressions. Furthermore such documents would be highly relevant to the defence of both the third and fourth respondents in par 8(d) ( and also to the defence of the third respondent). I therefore am of the view there is prima facie a significant likelihood that the public interest in the administration of justice could outweigh the very high public interest in the confidentiality of documents recording Cabinet deliberations. This is because of both the likely probative effect of the documents to the pleadings of both the applicants and the third and fourth respondents as well as the extreme seriousness of a claim for conspiracy against a former and present Cabinet Minister.
40 However, there are reasons why the Court, short of inspecting the documents, is not able to conclude whether the materiality of the documents to the proper administration of justice is such as to constitute "very exceptional circumstances' (in the case of actual deliberations of Cabinet) or "exceptional circumstances" (in the case of other Cabinet documents). Firstly it is not presently known whether documents (b), (c) and (d)(ii) and (iii) are incorporated by reference into documents (b), (c) and (d)(i) so as to form part of a record of actual Cabinet deliberations. Secondly, it is not known whether any of the documents make express reference to a matter which is arguably a prohibited reason. Thirdly it is not known whether the documents use the Expressions and, if so, to what extent.
41 It follows that an order should be made for inspection of the documents and the motion held over pending the inspection being carried out.
|
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable
Justice R D Nicholson |
Associate:
Dated: 25 February 1999
|
Counsel for the Applicants: | Mr R Redlich QC with Mr W Friend |
| Solicitor for the Applicants: | Dwyer Durack |
| Counsel for the Third Respondent: | Mr C Sweeney |
| Solicitor for the Third Respondent: | McCallum Donovan Sweeney |
| Counsel for the Fourth Respondent | Mr G Tannin with Mr M Lundberg |
| Solicitor for the Fourth Respondent | Crown Solicitor of WA |
| Date of Hearing: | 16 February 1999 |
| Date of Judgment: | 25 February 1999 |
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