NT Power Generation Pty Ltd v Power & Water Authority [2000] FCA 51 (2 February 2000)

Last Updated: 7 February 2000

FEDERAL COURT OF AUSTRALIA

NT Power Generation Pty Ltd v Power & Water Authority [2000] FCA 51

EVIDENCE - PRIVILEGE - PUBLIC INTEREST IMMUNITY - Cabinet submissions and decisions - balancing interests of justice - relevance of Cabinet materials to issues in proceeding - whether fair trial possible without disclosure of Cabinet documents - whether the documents were significant for the purposes of a fair trial.

PRACTICE AND PROCEDURE - interlocutory ruling - whether interests of justice entitled application to reconsider ruling - whether changed circumstances - whether nature or quality of evidence may constitute changed circumstances when pleading issues unchanged - whether ruling regarding public interest immunity should be reconsidered.

NT POWER GENERATION PTY LIMITED (ACN 061 314 921) v POWER AND WATER AUTHORITY and GASCO PTY LIMITED (ACN 009 627 801)

D5 OF 1999

MANSFIELD J

2 FEBRUARY 2000

DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	D 5 OF 1999

BETWEEN:	NT POWER GENERATION PTY LTD (ACN 061 314 921) Applicant
AND:	POWER AND WATER AUTHORITY First Respondent GASCO PTY LTD (ACN 009 627 801) Second Respondent GASCO PTY LTD (ACN 009 627 801) Cross Claimant NT POWER GENERATION PTY LTD Cross Respondent

JUDGE:	MANSFIELD J
DATE:	2 FEBRUARY 2000
PLACE:	DARWIN

REASONS FOR DECISION

1 On 18 August 1999, I gave reasons for my decision in part upholding and in part rejecting the respondents' claim that certain documents discovered by them in these proceedings were privileged from production on the ground of public interest immunity. At the time, the documents in question were listed and briefly described in a list running to some 34 pages and listing in excess of 400 documents. Those documents fell into the category of `Cabinet documents', to use the term used by Gibbs ACJ in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 41 ("Sankey") to encompass the categories of documents described by his Honour earlier in his reasons at 39.

2 I shall use that term in these reasons to refer to the documents which are described in a little more detail in pars 1 and 2 of my earlier reasons. There is nothing to indicate that the documents now in issue are of any different general description.

3 Since that ruling the respondents have discovered many thousands more documents. Included in the further discovered documents are several hundred which fall into the category of Cabinet documents, and in respect of which the respondents maintain a claim for public interest immunity. The list of such documents is now 68 pages long, including the earlier documents. The applicants tell me that there are some 739 additional documents in respect of which the claim for public interest immunity has been made.

4 In addition, two non-parties, TreEnt Pty Ltd and Merrill Lynch International (Aust) Ltd, have produced to the Court, under subpoena, a number of documents. As those two entities apparently brought into existence or held the documents so produced in their capacity as consultants to the Northern Territory Government, I directed that access to those documents in the first place be given to the respondents. This was to determine if there was any claim, on their part, that any of the documents so produced by those entities should be withheld from the applicant due to some claim of privilege. It was only after the respondents had had that opportunity that the balance of the documents were to be made available for inspection by the applicant. A limited number of those documents are also subject to a claim that they should not be made available to the applicant for inspection on the ground of public interest immunity.

5 All of those claims are disputed by the applicant. The applicant, in effect, seeks the Court to reconsider the ruling made on 18 August 1999 in light of the circumstances and events which, it submits, have occurred since that time.

6 Before I proceed to consider the application, it is desirable that I briefly refer to the history of these proceedings, to indicate how these issues have arisen at this relatively late stage in the course of the hearing.

7 The nature of the proceeding is briefly described in pars 18 and 19 of my earlier reasons. I will not repeat it. I add, however, as was apparent from the earlier reasons, that the respondents have indicated that, in respect of certain critical decisions pertaining to these proceedings, the Northern Territory Government, whether through Cabinet or the relevant Minister, was the decision-maker rather than the Chief Executive Officer or the administrative board of the first or second respondents.

8 The hearing commenced in August 1999. That time was fixed when the applicant indicated that the hearing could reasonably be completed in three or so weeks, and at a time when the respondents indicated that they could also be ready for trial.

9 As the trial date neared, the respondents applied for it to be adjourned as the task of discovery was proving much more extensive than they had initially foreseen. They then thought that, with difficulty, their discovery could be completed shortly after the trial commenced. They were in a position where they said they were unable to file and serve their statements of proposed evidence by the commencement of the trial.

10 The applicant, for its part, sought to maintain the hearing date, urging upon the court the urgency of the matter, and the circumstances in which it came to be listed for hearing. I will not refer to those circumstances in these reasons.

11 The applicant, by its counsel, indicated that it wished to proceed with the trial, notwithstanding that the respondents' statements of proposed evidence would not by then have been filed and served, and that the respondents' discovery might not be fully complete. I accept that the applicant then anticipated that the respondents' discovery would be largely completed by that time.

12 The Court determined to proceed with the matter for the period of the hearing then fixed, but upon the basis that it would adjourn the trial in any event for several weeks if the applicant's case was to be closed before that period had expired. The respondents then would have a further significant time to complete their preparation of witness statements, their discovery, and their preparation generally for the case, before the matter further proceeded.

13 The ruling given on 18 August 1999 was thus made at a time when it was understood the respondents had not completed their discovery, and before they had disclosed their proposed witnesses and the terms of their proposed evidence.

14 As the history of the proceeding reveals, and highlighted perhaps by the present application, the applicant's expectation that the respondents would largely complete discovery during the first block of the hearing proved to be far too sanguine. I accept that the respondents, through their counsel, have maintained and expressed caution about when the discovery process would be completed.

15 Many thousands of documents have been discovered since August 1999, and the respondents have given the applicants four supplementary lists of documents (numbered 15 to 19) only during January 2000. There are apparently some documents within those additional supplementary lists which are also to be the subject of a claim for public interest immunity, but they have not yet been separately listed and described. The respondent, I accept, has been endeavouring conscientiously, and as fully as it could, to give its discovery in a timely manner. However, the volume of documents so involved has been immense.

16 The hearing time fixed for October 1999 was taken up with the balance of the applicant's case, which in fact took considerably longer than the applicant had at first estimated, and then with certain evidence of the respondents. The matter was further adjourned with a block of time to complete the hearing commencing on 1 February 2000.

17 At the completion of the last block of hearing, the parties then indicated that there was a further potential issue to be pursued regarding the claim for public interest immunity. That is the issue which is only now raised. It is raised before the respondents' evidence further proceeds.

18 The claim for public interest immunity, still maintained by the respondents, was initially supported by an affidavit of the Chief Executive Officer of the Northern Territory Department of the Chief Minister and the Secretary to Cabinet. In respect of the more recently discovered documents, it is now supported by a further affidavit effectively in the same terms of the Acting Chief Executive Officer of that Department of the Northern Territory Government. It makes the same general claims for public interest immunity as that previously made.

19 As I noted in my earlier reasons, the claim is a class claim. There are no particular documents of which disclosure of the contents, the respondents contend, would be of particular adverse significance to the public interest. The reasons for that claim are set out in par 6 of my earlier reasons for decision. I shall not repeat them. I am satisfied that they still apply. I am also satisfied that the affidavit of the Acting Chief Executive Officer of the Chief Minister's Department of the Northern Territory Government is an appropriate basis upon which to form those conclusions.

20 I will not repeat the general principles relating to determining a claim such as the present. They are discussed in Sankey. In so far as they are particularly relevant to the present matter, in part at least the passages from that decision are referred to in my earlier reasons. In the course of the present submissions, counsel has drawn my attention to certain observations of the High Court in The Commonwealth v Northern Land Council [1993] HCA 24; (1992) 176 CLR 604 ("Northern Land Council"). It seems to draw some distinction, at least in terms of degree of significance, between documents which record the actual deliberations of Cabinet on the one hand, and documents which fall into the more generic description of Cabinet documents on the other hand. The majority (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ) said at 614-615:

"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. When immunity is claimed for Cabinet documents as a class and not in reliance upon the particular contents, it is generally upon the basis that disclosure would discourage candour on the part of public officials in their communications with those responsible for making policy decisions and would for that reason be against the public interest. The discouragement of candour on the part of public officials has been questioned as a sufficient, or even valid, basis upon which to claim immunity. On the other hand, Lord Wilberforce has expressed the view that, in recent years, this consideration has "received an excessive dose of cold water".

But it has never been doubted that it is in the public interest that the deliberations of Cabinet should remain confidential in order that the members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be made."

See also at 618 and 619. The reason for those comments was said to be (at 616)

"... not so much a matter of encouraging candour and frankness as of ensuring that decision making and policy development by Cabinet is uninhibited."

That reason applies in respect of the Cabinet documents which are presently in issue.

21 However, even documents which record the actual deliberations of Cabinet, in respect of which there are strong considerations militating against disclosure regardless of content, are not absolutely immune from disclosure. The balancing process to which Gibbs ACJ referred to in Sankey at 43, and which I sought to apply in my earlier decision, is nevertheless called for: Northern Land Council at 616. The majority said on this topic, at 618:

"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."

22 The court in Northern Land Council referred to considerations relating to that balancing process in the possible disclosure of Cabinet deliberations upon matters which remain current or controversial at 618 - 619.

23 I apply those principles to this application, subject to being satisfied that it is appropriate to revisit any earlier ruling.

24 I determine this application on the basis that the Cabinet documents in issue do relate to matters which remain current and controversial. The very nature of these proceedings, and the process of implementation of the National Competition Policy principles which is in the process of being implemented by the Northern Territory Government, at least in respect of the first respondent, indicates that to be the case.

25 I then turn to consider whether the applicant should be permitted to maintain the present application. It was accepted by counsel that my decision of 18 August 1999 was interlocutory. In that circumstance, the relevant principles as to whether that decision may be revisited are well known. They are set out for example in Adam P Brown Male Fashions Pty Ltd v Phillip Morris Ltd [1981] HCA 39; (1980) 148 CLR 170 at 177-178. That case was referred to by McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (McLelland J, Supreme Court of New South Wales, 19 September 1988, unreported). I adopt his Honour's words as to the relevant principles:

"The over-riding principle governing the approach of the Court to interlocutory applications is that the Court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the Court to set aside, vary or discharge interlocutory orders will ordinarily be exercised. Not all kinds of interlocutory orders attract the same considerations. For present purposes one may put to one side orders of a merely procedural nature (as to which see e.g. Wilkshire v Commonwealth (1976) 9 ALR 325) and injunctions (or undertakings) made or given by agreement and without contest "until further order" (as to which see e.g. Warringah Shire Counsel v Industrial Acceptance Corporation, McLelland J 22 November 1979 unreported).

In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application." (references omitted)

26 Those observations have been referred to with approval by other judges of this Court: Arthur Andersen & Co (a firm) v GPA Group PLC (Full Court, 13 November 1998, unreported); J H Fenner & Co Ltd v Gulf Conveyor Systems Pty Ltd (Moore J, 4 August 1998, unreported); Darling Harbourside (Sydney) Pty Ltd v Sanirise Pty Ltd (Subject to Deed of Company Arrangement) (Full Court, 17 May 1996, unreported).

27 It is convenient to address those principles in conjunction with considering the matters now advanced by the applicant on the merits of this application. I propose to do that.

28 I do not consider that the mere fact that extensive additional discovery, including many more documents the subject of public interest immunity claim, is a factor which warrants revisiting that ruling. It is true that, at the time of the decision of 18 August 1999, neither party expected such extensive additional discovery, but the ruling then made was general in its application and was not determined by reference to the quantity of the discovered material or the numbers of documents in respect of which the claim for public interest immunity was made. The fresh documents in issue are not suggested to have any additional character or different character to warrant their separate consideration.

29 I am also not prepared to reconsider the decision on the ground which was submitted; namely that

"The strength of the political convention with respect to the protection of cabinet secrecy should be reconsidered."

30 The foundation for that submission was the publication in August 1999 of the political memoirs of a former Cabinet Minister, and the apparent lack of any vigorous response by the Department of Prime Minister and Cabinet to what was said to be some disclosure of Cabinet deliberations in that book. The High Court in Northern Land Council at 615 remarked upon the view that the publication of such material has not generally been regarded as diluting the desirability of preserving Cabinet secrecy to maintain the principle of collective responsibility for decision making made by Cabinet.

31 It was also put, at one point, that the fact that the respondents have, from time to time, acknowledged that certain documents have erroneously been included in those documents in respect of which the claim for public interest immunity has been made, should lead to reconsideration of my earlier decision. It was also put that certain documents disclosed by the respondents, and made available for inspection, are of the character of Cabinet documents, and that, for that reason also, the court should reconsider its earlier decision. Particulars of the occasions when that has occurred have been given. In light of the volume of discovered documents, it is not surprising that there have been such errors or oversights from time to time, or, on occasions that there has been uncertainty in the appropriate classification of a particular document, which has led to a line being drawn in one way or another which might be the subject of criticism. I do not accept that that is a reason to go behind the affidavits of the two Chief Executive Officers to which I referred. Indeed, in so far as the correspondence in evidence on this application is concerned, it shows that the respondents' advisers have been conscientious in recognising and rectifying such errors or oversights, if they have been brought to attention. The mere fact that there have been such errors or oversights, or that there have been occasions where a judgment about which side of the line a particular document resides in relation to my earlier ruling is not, in my view, a reason to reconsider the earlier decision.

32 I also adhere to the view I previously expressed in par 19 of my reasons, that the claim is a civil claim for damages and for injunctive relief. It is not analogous to Sankey for reasons which I then gave. I did, however - and for the purposes of this application, will continue to do so - have regard to the roles of the respondents as discussed in par 19 of the earlier reasons. I am not prepared to take the additional step based upon s 2B of the Trade Practices Act 1974 (Cth) ("the Trade Practices Act"), which came into force in its initial form on 20 July 1996, of treating the common law as `qualified' by that provision. Nor am I prepared to conclude that the failure to accede to the application somehow assists the respondent in frustrating the application of the Trade Practices Act to the respondents.

33 The applicability of the Trade Practices Act to the respondents, in the present circumstances, is one of the principal matters which falls to be determined in the proceedings. I am not disposed to assume its applicability adverse to the respondents for the purposes of this application. I also draw attention to s 2B(2) of the Trade Practices Act and to s 155(7A) of the Trade Practices Act, which was introduced at the same time as s 2B. It is part of the amendments consequent upon the National Competition Policy agreements which indicates, to some degree, that the package of amendments then introduced was not necessarily intended to qualify the entitlement of State and Territory Governments or their officers to claim that documents or information may be the subject of public interest immunity in proceedings such as the present.

34 I am also not prepared to entertain the submission now made that the documents are simply documents touching upon matters of commerce rather than matters of significant Government policy. I previously ruled on that issue in pars 21 and 26 of my reasons. I see no reason to re-open that part of my decision. Indeed, as the evidence generally shows, consideration of the process of implementation of the National Competition Principles agreement following the adoption of the National Competition Policy, in relation to the first respondent, was a matter of serious concern to the Northern Territory Government. It did involve significant policy decisions to be made as to the appropriate means of implementing those principles, having regard to a range of matters of political and social significance. The considerations might, in another context - that is, if the respondent was a private corporation - be seen simply as commercial. But it would be to ignore reality to extrapolate from that fact the conclusion that they were not matters of significant Government policy. That is because the Northern Territory Government was considering how and when a monopoly supplier of electricity to general consumers in the Northern Territory, or at least in the Darwin/Katherine area, with a tariff structure fixed by Government determination, would be altered to supply electricity to those consumers in the future in accordance with the National Competition Policy and Principles.

35 Finally, I turn to the significance of the documents for the purposes of a fair trial. It is this aspect which has caused me most concern. The respondents throughout have maintained that the Trade Practices Act did not apply to their activities as alleged by the applicant (the government immunity claim as it has been called). Through their defence, they have also denied in any event that the respondents had, as a relevant purpose for their consideration of the applicant's claim for access to the electricity infrastructure of the first respondent, and the applicant's claim to secure gas supplies for the generation of electricity from the second respondent, a purpose proscribed by s 46 of the Trade Practices Act, as explained by s 4F of that Act.

36 At the time of my initial ruling, I referred in par 24 to the nature of the material then available to the applicant. I said

"I have also had the benefit of the opening of the applicant's case on liability by Mr Barker of senior counsel. He took me carefully through a number of documents, including documents emanating from the respondent or the Northern Territory Government, including Ministerial Statements which he said demonstrate that state of mind. The documents referred to were more than just a few. The case is not one where the applicant will be left without evidentiary resources on that issue if the application based upon public interest immunity succeeds."

As noted earlier, there were then no statements of proposed evidence filed and served by the respondents. That material did not become available until some weeks later.

37 It was in the light of the observations in par 24 of my earlier reasons that I then concluded that the balancing process should fall in favour of preserving, in respect of documents from 25 February 1994, the claim for public interest immunity. Since that time the respondents have filed and served their proposed witness statement. They have filed and served the documents which they propose to tender, in 12 volumes. They have commenced their evidence, including from the Under-Treasurer Mr Clarke and he has been cross-examined.

38 It is the content of that material thus far which, in my judgment, represents the strongest point in the applicant's favour on this application. That evidence is, at least in part, directed to showing that the respondents, or in some instances the Northern Territory Government made their decisions and took their actions about the nature and timing of the implementation of the National Competition Policy Principles for certain reasons. Thus it is sought to show that the respondents did not, in making those decisions and in taking those actions, have a purpose which is proscribed by s 46 of the Trade Practices Act.

39 I have been referred to passages in the statement and oral evidence of Mr Clarke, and in the statement and oral evidence of Mr Clifford, whose evidence has also been completed, and in the statement and oral evidence in chief of Mr Gardner, to demonstrate that it directly relates to the nature and process of decision making of the respondents and of the Northern Territory Government in respect of matters relevant to this action, and to the reasons for those decisions and for the actions taken in pursuance of them from time to time. I have also been referred to extensive material in the respondents' proposed tender bundle potentially to the same effect.

40 That evidence and material, if accepted, is capable of showing a very different picture on those critical questions to the picture presented by the applicant in its opening, based on the material then available to it, including, to some extent, material provided by the respondents. It shows a sophisticated and thorough consideration of the matters facing the respondents and the Northern Territory Government in implementing those principles. It shows a careful consideration of those matters, remote from consideration of the applicant's claim to access to the first respondent's infrastructure. The addressing of those issues by the respondents, on the material I have been taken to, is inconsistent with the picture which the applicants presented in their opening, and upon which I formed my conclusions and my reasons of 18 August 1999. It is different because the denial, and the general plea contained in the defence, have been fleshed out very considerably by the evidence or proposed evidence. In my judgment, that material adds a significant dimension to the picture as it was at August 1999, notwithstanding that the terms of the respondents' defence remain unchanged.

41 That material also shows that the relevant decision making processes of the respondent, including the Northern Territory Government, was a combination of Cabinet, of the individual Ministers making autonomous decisions and also decisions which in a sense were authorised by, or pursuant to, that Minister's understanding of the general approach of Cabinet to the issues, and, to some degree, of the Under-Treasurer and by the Chief Executive Officer of the first respondent. No clear line can be drawn between decisions at various levels in procuring a reliable picture of the process of decision making relevant to this proceeding, or the reasons for it.

42 The material, in particular the evidence of Mr Clarke, also discloses that the decision making process was, in a sense, a composite one. He frequently, in his answers to questions, referred to `we' to represent what may be found to be the case, namely that his views and the views of his Minister, and perhaps the views of other senior public servants, really were the views of the respondents, and, in a practical sense, of the Northern Territory Government. It is understandable that that should be the case. I mean no criticism in that regard. Mr Clarke was clearly integrally involved in the decision making processes.

43 The material available to the applicant shows the individual considerations of Mr Clarke and, for example, of the Treasurer, except were those views and their recommendations were to go to Cabinet. It shows the recommendations of Mr Clarke to the Treasurer and of the decisions made by the Treasurer. The same applies to other senior public servants and to the Minister for Essential Services. It draws the line at Cabinet documents. However, I consider that that isolation of discoverable material at that line which is sought to be produced, has proved to be difficult and unhelpful. It does not reflect fully the reality of the way in which, on the material, relevant decisions and actions were taken by the respondents or why those decisions and actions were taken. It presents only part of that picture. At present, the applicants are faced with having to invite the court to draw the full picture by inferences from the parts of it which are available. In expecting the applicants to do that, in my view, there is a significant potential injustice to the applicants.

44 There is also, and perhaps more importantly, the potential that the Court will be unable to do justice between the parties. That is simply because the evidence of what was before the ultimate decision makers is not before the court, but only the documents which are at a layer beneath that process. In my judgment, it is important in the interests of justice in the circumstances to which I have referred that the full picture be available to the applicant, to the Court, and to the respondents for their use in these proceedings.

45 The respondents submit that the material in respect of which the claim for public interest immunity has been made will prove to be of no help to the applicants. They invited me to examine the documents to be satisfied of that topic. I have not done so. It seems to me that the interests of justice are served equally in the event that that is the case. It may be that the documents in question provide no bonanza, or even no modest insight, for the applicants into the decision making processes of the respondents, or of the Northern Territory Government, in a way which assists their case. The position then would be that the respondents would be able to adduce evidence of those materials to enable the Court to reach a just and correct decision on those questions, not constrained by having to draw inferences from the more limited material available to it. The Court would not therefore be limited to evidence of the lower levels of decision making within the respondents or the Northern Territory Government. It would not be required to draw inferences from that material. Also, the Court would not be obliged to determine whether Mr Clarke's views as to what were the reasons for a certain action, or, on occasion his assertions as to what were the Government's reasons for certain actions, should be accepted by the Court as establishing in fact the Government's reasons for those actions.

46 Mr Clarke has said in answer to a certain question that it was the Government's view that a certain action should be taken, or that the Government took a certain action for a particular reason. Bearing in mind the previous ruling made on 18 August 1999, it does not appear to me to be fair to the applicant to be faced with such evidence without access to certain Cabinet documents. His answers were proper, and were in response to proper questions. They demonstrate that it is difficult to fairly draw a line in evidence between levels of decision making. His answers were given notwithstanding that he was aware of that line having been drawn by the respondents by their claim for public interest immunity. It will also be difficult for the Court, in the absence of that material, to fairly consider that sort of evidence. This is because the applicant has not had a fair opportunity to understand and assess the context to which it relates, at least not without access to the Cabinet documents, and because the Court itself, in the light of its earlier ruling, may be constrained in giving appropriate weight to such answers. That may result in unfairness to one or other party. It will not assist the attainment of a just result in the proceeding. I do not criticise Mr Clarke at all for giving answers in the way in which he did. I think his answers simply reflect the reality of the situation, that the decision making processes (as I explained earlier in these reasons) were in the nature of a composite process rather than a process which can be isolated and taken tier by tier in the way in which the previous ruling anticipated.

47 Those considerations cause me firstly to rule that there is sufficient fresh material to warrant the review of my earlier ruling, and secondly to determine that the balance now lies in favour of the public interest in the proper administration of justice. Consequently, I do not think that the public interest in the Cabinet documents or some of them, being protected from disclosure should still maintain the priority which I previously accorded it.

48 Having reached that conclusion, I do not think that the applicants are therefore entitled to all the documents discovered and presently withheld from production, that is Cabinet documents from 25 February 1994. The particular feature of the case which has changed since 18 August 1999 goes to the issue of the nature and the reason for Cabinet decisions in the face of the applicant's licence to generate electricity and then, on and from 26 August 1998, the refusal or failure to give to the applicant access to the first respondent's electricity infrastructure.

49 It is that period which involves the question of the purpose of the respondents and of the Northern Territory Government in making and implementing the decisions which it did. In respect of the period prior to those issues arising, there is no reason to think that there is any particular material of a special significance to the applicants which, having regard to the public interest in the non-disclosure of those documents, warrants, on balance, their being disclosed to the applicants.

50 The application for a licence to generate electricity was first raised in the early months of 1998. I am of the view, therefore, that the access which I propose to direct for the applicant to the Cabinet papers should be granted only from about that time. I fix 1 March 1998 as the commencement of that period.

51 In theory, the issue is ongoing. However, I consider also that the period in respect of which disclosure should be made should also be closed. Mr Clarke's evidence indicated that the decision as to the time for the commencement of an access regime on 1 April 2000 was determined in late 1999. Accordingly, despite the fact that the applicants allege an ongoing refusal of access to the present time, I consider, in the balancing exercise, that the period should be closed at 31 October 1999.

52 That would accommodate most of the more significant decisions of the respondents over the period of time when the applicants allege that their claim to access was being refused, and being refused for a reason proscribed by s 46.

53 I reject the applicant's claim that the disclosure should be for a longer period, and, indeed, for the whole of the period from 25 February 1994. There are some reasons which the applicants have given why that should be the case. The interests of justice, which must be balanced against the public interest in non-disclosure of that material, do not, in respect of that earlier period, lead me to the view that that material should be disclosed. In reaching that view I have borne in mind the particular nature of the documents in issue, which are described in a little more detail in pars 21 - 23 of my earlier reasons.

54 Being mindful of the strong public interest in the confidentiality of Cabinet documents, I propose to minimise any adverse impact which their disclosure might have upon the public interest by restricting to named counsel, and a named solicitor for the applicants (I have in mind senior and junior counsel for the applicant and its principal instructing solicitor) those persons who may have inspection of the Cabinet documents, subject to the respondents' agreeing in writing to a more extensive publication. I propose, therefore, to restrict those persons to whom inspection of the Cabinet documents in respect of the period in issue may be made to Mr Bannon SC, Mr Henskens, and Mr Riordan. However, I will give liberty to the respondents to make submissions on that topic if they wish to do so.

55 I will also hear the respondents as to whether they require any specific undertaking from any of those three persons as to confidentiality, as to the terms upon which the documents will be maintained; as to whether the documents should or should not be able to be copied, except for the purposes of tendering as evidence, or on other matters. It may be that the parties are able to agree upon those matters privately. If they are able to do so, I would urge them to do so.

56 I will also give the respondents liberty to conceal, in any of the documents to be produced, any material which falls within the description of `actual Cabinet deliberations', bearing in mind the observations of the High Court in Northern Land Council. It was not suggested in argument that there was any such material, but I did not specifically raise that with counsel for the respondents. I think the respondents should have that opportunity. It may be that there is no such material. If the respondents do conceal the contents of any such document on that basis, I give liberty to the applicant to apply in relation to further disclosure of any such document. At present I do not think, bearing in mind the observations in Northern Land Council, that the interests of justice would demand its disclosure.

57 If any of the material to be ordered to be produced for inspection is to be admitted into evidence the Court will, at that time, address how best the public interest in the confidentiality of that material is best preserved.

58 Bearing in mind the timing of this ruling, I will also give the parties liberty to apply to recall Mr Clarke or Mr Clifford for further examination or cross-examination.

59 I accept the respondents' contention that in respect of the documents produced under subpoena by Merrill Lynch International (Aust) Ltd and TreEnt Pty Ltd, the same principles should apply. The only documents produced by those entities under subpoena, which have been withheld, are those which fall into the category of Cabinet documents, and which they hold in their possession only because of their respective capacities as consultants or advisers to the Northern Territory Government. It seems to me, in those circumstances, that the documents that fall within that same description of Cabinet documents, subject to the ruling I have just made, should not be produced for inspection. The ruling therefore applies in all respects to those documents.

60 I propose to order therefore, subject to hearing the parties about the terms of the order, that in respect of the documents for which the claim for public interest immunity has been made that claim be upheld, except in respect of the documents covering the period from 1 March 1998 to 31 October 1999, but excluding such content of those documents as comprises actual Cabinet deliberations.

61 I order, subject again to any submissions to the contrary, that the documents to be produced for inspection pursuant to this ruling be produced only to Mr Bannon SC, Mr Henskens and Mr Riordan and that they not be further published in any form by those three persons except in discussion between each other or for the purposes of use in the course of evidence. I give to the respondents liberty to make submissions as to the terms upon which that access ought otherwise to be granted, including any particular form of undertaking as to confidentiality or as to the copying and use of those documents or their return at an appropriate time.

62 I will address issues as to the way in which such documents come into evidence, if they are ever tendered, when that occasion arises.

63 I give liberty to the parties to apply to recall Mr Clarke or Mr Clifford if so advised.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate:

Dated: 3 February 2000

Counsel for the Applicant:	Mr A Bannon SC and Mr A Henskens
Solicitors for the Applicant:	Colin Biggers & Paisley
Counsel for the Respondents:	Mr L Foster QC and Mr M Grant
Solicitors for the Respondents:	James Noonan
Date of Hearing:	2 February 2000
Date of Decision:	2 February 2000