CATCHWORDS
PRACTICE AND PROCEDURE - discovery - inspection - public interest immunity -whether documents disclose Cabinet deliberations - whether secrecy ought to be maintained
Land Act 1962 (Qld) ss 343, 345
Trade Practices Act 1974 (Cth) s 45D
Crofter Hand Woven Harris Tweed Co v Veitch [1942] AC 435 Refd
The Commonwealth v Northern Land Council (1992-3) 176 CLR 604 Cons
Sankey v Whitlam (1978) 142 CLR 1 Cons
INP Consortium Limited & Ors v John Fairfax Holdings Limited (unreported 18.7.94 Sheppard J.)Refd
J L Holdings Pty Ltd v State of Queensland & Anor
No SG 1 of 1994
Kiefel J Brisbane 28 April 1995
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION No. SG 1 of 1994
BETWEEN:
J.L. HOLDINGS PTY. LTD.
Applicant
AND:
STATE OF QUEENSLAND
First Respondent
AND:
SOUTHBANK CORPORATION
Second Respondent
JUDGE MAKING ORDER: Kiefel J.
DATE OF ORDER: 28 April 1995
WHERE MADE: Brisbane
MINUTES OF ORDERS
THE COURT ORDERS THAT:
1. The documents be made available on a limited basis for inspection by the applicant's legal representatives.
2. The applicant prepare Minutes of Order.
Note: The Court will hear any application by the first respondent for a stay when the Minutes of Order are settled.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION No. SG 1 of 1994
BETWEEN:
J.L. HOLDINGS PTY. LTD.
Applicant
AND:
STATE OF QUEENSLAND
First Respondent
AND:
SOUTHBANK CORPORATION
Second Respondent
CORAM: Kiefel J.
DATE: 28 April 1995
PLACE: Brisbane
REASONS FOR JUDGMENT
The matter raised by the applicant's motion and for present determination concerns the first respondent's objections to produce for inspection documents listed by it, on the ground that they are of a class which will not, save in exceptional circumstances, be ordered to be produced. A further objection, affecting other documents and based upon legal professional privilege, is to be heard separately.
The Applicant's Case
The action arises out of dealings
with respect to certain land at Kangaroo Point, Brisbane
comprising land owned by the Brisbane City Council and twoadjoining
parcels which were reserved and set apart for certain purposes under the Land
Act
1962 (Qld) and in respect of which the Council was trustee. In 1987 the Council called for tenders with
respect to the development of the land owned by it. Whilst intending developers were permitted to
incorporate the reserves in a proposal they would need to negotiate with the
State government and in particular with the relevant Minister whose approval
was necessary under the Land Act if a lease of those
lands was to be granted.
The applicant outlines the steps taken in ensuing years and which it alleges culminated in the grant of leases both with respect to the Council land and the two adjoining parcels, in the latter case by the Minister for Land Management, Mr Harper, in October 1989. It is alleged however that the Ministerial approval was retracted in October 1991 by the then Minister and following discussions in Cabinet.
The discussions over the relevant
period, 1987 to October 1991, appear to be extensive as are the documents
sought to be withheld from production.
In 1988 a committee of the Queensland Cabinet was established to
consider a co-ordinated development of the lands, and the applicant's
proposals, which had the support of the Council, came to be discussed with and
considered by various ministers and public servants throughout 1988. It is alleged that on 16 January 1989 the
then Cabinet approved the proposal and after a period when the terms of the
agreement for lease were discussed, and on 23 October 1989, the Minister gave
the approval required by s.343 Land Act. Steps are then said to have been taken to
fulfil other requirements, such as rezoning and obtaining necessary
permits. By 26 February 1990, it is
alleged
that the applicant and the Brisbane City Council had executed the lease for the
reserve lands and it was forwarded to the Minister for the endorsement of his
approval as required by s.345.
By this time however there had been a change of government, although the applicant's statement of claim suggests that continued support for the development was expressed by the new Minister for Land Management and the Deputy Premier and further that statements were made by the Deputy Premier acknowledging that approval had been given to a lease by the former government. By May 1990 an issue relating to the validity of the leases is said to have been raised. On 22 October 1990 the Premier issued a press release stating that the government had decided to approve only a limited development of the area. This was the subject of following discussions between J.L. Holdings, the Deputy Premier and the Lands Administration Commission. On 17 July the Minister for Land Management wrote to J.L. Holdings advising that his "inclination" was to refuse to endorse the approval, but invited it to make submissions. On 4 October 1991 he advised that he had decided not to endorse his approval.
At the same time, it is alleged, the Government was looking to support and fund the development of Southbank by the second respondent and which, it is said, contained some similar concepts to those put forward by J.L. Holdings. Discovery has been made by the second respondent.
A central issue in the case, the determination of which in favour of the applicant may conclude the matter, is whether the endorsement referred to in s.345 implies a discretion not to approve. Involved in it will be the question whether the previous Minister had in fact approved. Beyond the question of construction, issues as to the agency of the Council in this process and as to whether the first respondent is estopped from denying approval are raised.
A number of claims are made including, for example, one for damages for breach of copyright. It is not necessary to refer to them in detail. For present purposes they include claims for damages for breach of lease and of agreement for lease, for misfeasance in public office by the Minister, for civil conspiracy and for contravention of s.45D Trade Practices Act 1974. In these respects it is alleged that the Minister unlawfully and deliberately withheld endorsement and that there was a combination of the first respondent, via the Minister, and the second respondent to effect that purpose and which resulted in damage to the applicant (as to which see Crofter Hand Woven Harris Tweed Co. v. Veitch [1942] AC 435). Extensive loss and damage is claimed.
The Documents
The documents in question are
listed as "MRB4" to the
affidavit of Mr Burnett sworn 3 November 1994 and are described as Cabinet Minutes,
Cabinet Decisions and Extract Decisions, Cabinet Decision Summary, Cabinet
Advice, Memorandum of Cabinet Decisions, Cabinet Submissions and Briefing
Notes, Minutes
of Cabinet Committee Meeting, Cabinet Budget Committee Submissions, Executive
Council Minute, Memo of Officers of the first respondent discussing Executive
Council Submission, Ministerial Correspondence regarding Cabinet submissions,
decisions or agenda, Memos of or Correspondence between officers of the first
respondent providing summaries of submissions or discussing proposed
submissions or decisions, Briefing Notes by officers to Ministers,
Correspondence between the first and second respondents as to a proposed
submission.
The period during which these documents came into existence, as revealed by "GD2" to the affidavit of Mr Davis, sworn or affirmed 14 March 1995, the now Director-General of the Office of Cabinet, extends over the period relevant to the action and some further description provided by that Schedule connects the documents to the applicant's proposal. One can thereby infer that at a number of points in the history outlined by the applicant, submissions and reports were prepared, consideration was given by Ministers and decisions were made.
The Documents in the Applicant's Case
The documents, one infers from
their having been listed, are relevant at least in the sense of discovery. Not
all the documents may be of great importance to the applicant's case, but the
approach taken to production does not require individual assessment of
them. Having regard to the issues
raised, earlier documents at the time approval is said to have been
communicated and which may throw light upon the role of the Council may be of
some assistance. More importantly the
document disclosing
the basis for the later decision not to endorse the lease are clearly of
importance. Indeed, from the applicant's
point of view, they may provide the only means by which it can make out a
number of its claims alleging loss based upon wrongful conduct.
The Documents - The First Respondent's Objection
The first respondent contends that the documents are all of a class, namely Cabinet documents, which will not be ordered to be produced, save in exceptional circumstances (The Commonwealth v. Northern Land Council (1992-3) 176 CLR 604, 618) and such circumstances do not here exist.
It is not apparent from the description of the various types of documents in the Schedule to and in the body of the affidavit of Mr Davis that the documents record the actual deliberations of Cabinet, which was the class of documents with which the High Court was concerned in the Northern Land Council case (614, 615, 617). There do not appear to be full minutes recording the discussions which took place in Cabinet. At one end of the spectrum they comprise the actual decision which might disclose the process leading to decision (the "mind" of Cabinet) but may not do so. The submissions made to Cabinet are, it is submitted, to be seen as part of the deliberative process since they often take the place of oral submission by the Minister concerned. This might also apply to Briefing Notes. At the other end are documents quite remote from the considerations of Cabinet.
The public interest in retaining secrecy in Cabinet documents, properly so called, is in the protection of full and frank exchange: Northern Land Council, 615. Here, even with respect to those documents having a closer connection with discussions in Cabinet it is not apparent that they disclose exchanges within Cabinet, and were I of the view that the result here turned upon that question I would need to refer to the documents themselves, a situation predicted in Northern Land Council (612). The task is a substantial one, although were it necessary to do so, I would not be deterred by that fact. It is possible that all of the documents in the volumes comprise Cabinet documents proper, although the sheer number and the fact that they appear to extend to any memo by officers within departments prior to or following Cabinet matters leads me to doubt that.
When one comes to consider the basis put forward by the first respondent for the continued secrecy of considerations by the Cabinet on the matter of the development of this land, the material is less helpful. The affidavit, or statement affirmed by Mr Davis appears to have been drawn with the Northern Land Council case in mind and is regrettably very general in its terms. It is said that Cabinet deals with matters of policy and the formulation of budgeting principles. So much may be accepted. Of closer relevance to the facts of this case, though rather obliquely stated, is the following:
"When
Cabinet deals with matters involving significant developments, it invariably
has to consider submissions which contain delicate commercial considerations
which have been put
forward by Ministers or by the Director-General of Departments on the basis
that they will remain confidential".
There is otherwise no further detail as to any particular issue arising in the discussions in question which might explain its sensitivity. It is not clear whether the confidentiality spoken of is some obligation to a third party, although other references confine it to confidentiality in the Cabinet process. The reference to confidentiality in the process is stressed in the body of the affidavit and in the "Cabinet Handbook" annexed to it. Whilst a material consideration, it is not itself a ground of privilege (Sankey v. Whitlam (1978) 142 CLR 1, 43). The more important question on this application seems to me to be whether, assuming the documents fall within the class of Cabinet deliberations, their secrecy ought be maintained when regard is had to the subject with which they are concerned and the time at which the discussions were had and the decisions made.
The Principles Applicable
There is no doubt that the Courts remain conscious of the need, in a proper case, to maintain the secrecy of Cabinet discussions. In Sankey v. Whitlam Gibbs ACJ (43) said:
"...
I consider that although there is a class of documents whose members are
entitled to protection from disclosure irrespective of their contents, the
protection is not absolute, and it does not endure for ever. The fundamental and governing principle is
that documents in the class may be withheld from production only when this is
necessary in the public interest. In a
particular case the court must balance the general desirability that documents
of that kind should not be disclosed against the need to produce them in the
interests of justice. The court will of
course examine the question with especial care, giving full weight to the
reasons for preserving the secrecy of documents of this class, but it will not
treat all such documents as entitled to the same measure of protection - the
extent of protection required will depend to some extent on the general subject
matter with which the documents are concerned.
If a strong case has been made out of the production of the documents,
and the court concludes that their disclosure would not really be detrimental
to the public interest, an order for production will be made".
Thispassage was cited with approval in the Northern Land Council case (616, 617).
The first respondent's argument fastens upon the passage later appearing in the judgment of the majority (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".
The argument then, it seems to me, assumes that once qualified as documents disclosing Cabinet deliberations, this presumption in favour of continued secrecy operates and the subject matter of the discussions in question is irrelevant. Such an approach may derive from a hard and fast line being drawn between "class" and "contents" claims, but in any event it seems to me that it overlooks the true enquiry as to whether documents "fall within a class which attracts immunity".
In the Reasons of the majority in the Northern Land Council case (616, 617), preceding the passage relied upon, their Honours acknowledge that the classification of claims into those relating to a class of documents (the disclosure of which would be injurious to the public interest whatever the contents) and those which ought not be disclosed because of the particular contents, serves to differentiate documents, but that a claim to a particular classification is hardly conclusive. At 617, having observed that routine inspection of documents by the Court in claims based upon the class of document would be unwarranted said:
"... The apparent dilemma is, we think, to be resolved by recognising that the classification of claims for immunity into `class' claims and `contents' claims is indeed often rough and imprecise. In many so-called `class' cases a court may find it necessary to consider a document, inspecting it if necessary, in order to determine whether it does in truth fall into a class which attracts immunity. The contents of the document may have a bearing on that question as may the topic with which it deals, particularly if it is no longer current or controversial".
And in the reasons which follow (617 and 618) it is clear that their Honours consider that the qualification of documents for immunity may rest upon their general topic or currency. There the "documents recording Cabinet deliberations upon current or controversial matters" (617) concerned the Ranger Uranium mine. Such an approach accords with the view expressed by Gibbs ACJ in the passage from Sankey v. Whitlam above, that the "extent of protection required will depend to some extent on the general subject matter with which the documents are concerned".
Here the documents do not concern
a topic now current or controversial, although at the time some different views
may have been expressed with respect to it.
Such a circumstance hardly however calls out for continued confidentiality of
Cabinet's debate when litigation by the company affected by the decision
ultimately reached raises the very question as to why the grant of a lease was
not confirmed. The Cabinet here was not
concerned with matters of high policy.
The little that is said in the affidavit material as to the need for
secrecy attempts to elevate discussions and considerations as to the use of
some land, and having a commercial element to matters of high financial
sensitivity but provides no basis for such a conclusion. If I considered a real question arises as to
whether that is so it may have been necessary to view the documents. Nothing put before me however suggests that
that step is warranted.
Some of the documents in question may properly be described as important to the applicant's case and, with respect to the events of 1990 and 1991 potentially crucial to a number of its claims. Assuming that the documents did disclose actual deliberations of Cabinet (but as to which I have some doubt) the topic with which they were concerned and the time which has passed are matters which affect the level of protection called for. The interests of justice would I consider be frustrated were production withheld.
This is however a case where, at
least initially and until the documents have been considered by the applicant's
legal advisors, they ought be kept confidential in the sense that they be made
available on a limited basis for inspection by the applicant's legal
representatives, the course which commended itself to Sheppard J. in
INP
Consortium Limited & Ors v. John Fairfax Holdings Limited
(unreported 18.7.94) and, mindful of the procedure suggested in Sankey
v. Whitlam (43) I will hear any application by the first respondent
for a stay when the Minutes of Order are settled.
I certify that this and the preceding 11 pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.
Associate
Date: 28 April 1995
Counsel for the applicant: Mr T. Gray QC and Mr T. Matthews
Solicitors for the applicant: Minter Ellison Baker O'Loughlin
Counsel for the respondents: Mr R. Hanson QC and Mr G.C. Martin
Solicitors for the respondents: Crown Solicitor
Date of Hearing: 16, 17 March 1995
Place of Hearing: Brisbane
Date of Judgment: 28 April 1995
