FEDERAL COURT OF AUSTRALIA

Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 495

PRACTICE AND PROCEDURE – Litigant requesting documents under freedom of information legislation from a government agency to assist it in presenting and conducting a case against that agency – Whether request is an interference with the administration of justice – whether the request undermined the integrity of the discovery processes of the Court – whether request vexatious and oppressive

FREEDOM OF INFORMATION – Whether there are limitations upon a litigant’s entitlement to request information from a government agency to assist the conduct of the litigant’s case against the agency

Freedom of Information Act 1982 (Vic) ss 17, 25A and 31

Environmental Protection Agency v Mink 410 U.S. 73 (1973) - cited

Moussa v State of New York 458 N.Y.S. 2d 377 (A.D. 1982) - cited

In the Matter of M. Farbman & Sons Inc v New York City Health and Hospitals Corp 62 N.Y. 2d 75 (1984) - considered

Ryder v Booth [1985] VR 869 – cited

Accident Compensation Commission v Croom [1991] 2 VR 322 – cited

Department of Premier and Cabinet v Birrell [1990] VR 51 – cited

Sobh v Police Force of Victoria [1994] 1 VR 41 – cited

Victorian Public Service Board v Wright (1996) 64 ALR 206 – cited

Victoria v Australian Building Construction Employees and Builders Labourers’ Federation (1982) 152 CLR 25 – cited

Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460 – cited

Sentry Corporation v Peat Marwick Mitchell & Co (1990) 95 ALR 11 – cited

South Carolina Co v Assurantie N.V. [1987] 1 A.C. 24 – applied

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 – considered

Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 – applied

All-State Life Insurance Co v Australia and New Zealand Banking Group Ltd (1996) 64 FCR 61 – distinguished

National Labor Relations Board v Robbins Tire Rubber Co 437 U.S. 214 (1978) – cited

JOHNSON TILES PTY LTD v ESSO AUSTRALIA LTD

VG 519 OF 1998

STATE ELECTRICITY COMMISSION OF VICTORIA v BHP PETROLEUM (BASS STRAIT) PTY LTD

VG 524 OF 1998

JUDGE:          MERKEL J

PLACE:          MELBOURNE

DATE:            17 APRIL 2000

THE COURT ORDERS THAT:

1.      The motion of the Fourteenth Cross-Respondent, the State of Victoria, moved by Notice dated 3 March 2000, be dismissed.

2.      The Fourteenth Cross-Respondent pay the costs of the respondents of and incidental to the motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     The present motion concerns the statutory entitlement of a litigant to request documents from a government agency under freedom of information legislation to assist in the presentation and conduct of the litigant’s case against the agency, and whether there are any limitations on that entitlement.

Background facts

2                     On 25 September 1998 an explosion and fire occurred at the Longford gas plant in the State of Victoria.  The plant was owned, operated and conducted by the respondents (“Esso”).  As a consequence of the explosion, reticulated gas ceased to be available to gas consumers in the State of Victoria until the resumption of supply on 12 October 1998.

3                     The applicants, representing themselves and group members, commenced proceedings against Esso under Pt IVA of the Federal Court of Australia Act 1976 (Cth).  The applicants claim that, as a result of Esso’s negligence and misleading and deceptive conduct, the applicants and group members have suffered loss and damage.  Esso brought proceedings by way of cross-claim, alleging negligence and misleading and deceptive conduct on the part of the State of Victoria and a number of instrumentalities and authorities of the State which were involved in the distribution and sale of gas to consumers (“the State entities”).  The State entities brought proceedings, by way of cross-claim, for contribution against other entities involved in the distribution and sale of gas and a number of insurance companies against whom they claim the right to be indemnified under various insurance policies.

4                     Esso’s cross-claim against the State entities and the defence of the State entities to that claim raise complex issues of fact and law, the determination of which will require consideration of the role of the State entities in the sale and distribution of gas produced in Bass Strait since the 1970s.

5                     A Royal Commission was conducted into the cause of the explosion at the Longford gas plant.  Esso and various authorities of the State were represented at the Royal Commission and played an active role in its proceedings.  As a result Esso and the State entities were likely to have acquired an understanding of the factual background to many of the issues arising on Esso’s cross-claim.

6                     In that context Esso and the State entities established agreed procedures for discovery of documents between them with the consequence that discovery proceeded on a consensual basis.  By November 1999 it became apparent to the State entities that the discovery program, to which they had agreed, had reached the stage where compliance with discovery orders was no longer able to be achieved by them.  Applications were made to the Court by the State entities seeking extensions of time to comply with the discovery orders and also limitations upon the nature and extent of the discovery they were required to make.

7                     Esso opposed the limitations on discovery that were being sought by the State entities.  I acceded to the application of the State entities to limit the nature and extent of the discovery they were required to make on the ground that the agreed process had, through no fault of the parties, become unduly onerous and oppressive.  I emphasised that the orders limiting the ambit of the discovery at that stage were not intended to prejudice a later application by Esso for wider discovery in the event that it was able to establish that further discovery was appropriate.

8                     The discovery issues came on for hearing on 26 November 1999.  At the conclusion of argument I indicated that I was prepared to accede to the application of the State entities and requested that the parties reach agreement on the form of order.  There was further argument on the terms of the order which was finally made on 3 December 1999 (“the discovery order”).  On that occasion senior counsel for Esso conceded that his clients, upon reconsidering the matter since the previous hearing, had also arrived at the view that the discovery originally agreed to was, in all the circumstances, “oppressive”.

9                     Although Esso sought orders for discovery wider than those ultimately made on 3 December 1999, the more limited orders were made to ensure that the process of discovery was one which was not unduly oppressive and provided for a feasible, but staged, process of discovery by the State entities.  Accordingly, the discovery order limited the discovery required, limited the categories of discoverable documents, limited the enquiries required to be made by the State entities in respect of the discoverable documents and provided an orderly timetable for discovery to be completed by 31 March 2000 or such later date as the Court directed.  More particularly, the orders limited discovery to defined categories, limited the enquiries that were required to be made by the relevant State entities to the use of “best endeavours” (a term defined in the order), limited and defined the State officers by whom enquiries were required to be made  and limited discovery at that stage to the Departments of Treasury and Finance, of Premier and Cabinet and of Natural Resources and Environment.

10                  Between 10 to 24 December 1999 Esso lodged 321 requests under s 17 of the Freedom of Information Act 1982 (Vic) (“the FOI Act”) to the Departments of Treasury and Finance (105 requests); of Premier and Cabinet (54 requests); of Natural Resources and Environment (54 requests); of State Development (54 requests); and of Infrastructure (54 requests) (“the FOI requests”).  The FOI requests relate to matters which are likely to arise as issues in the course of the proceedings between Esso and the State entities and, I infer, were lodged by Esso in order to obtain documents to assist Esso in the presentation and conduct of those proceedings.

11                  Considerable correspondence has passed between the parties in relation to the FOI requests.  Initially, the solicitors for the State entities concerned with the FOI requests stated that the requests did not provide sufficient information to identify the documents sought.  Later the solicitors stated that the requests were an interference with the Federal Court proceedings.  On 25 February 2000 the State entities’ solicitors advised Esso’s solicitors that the State entities proposed to seek relief from the Court to the effect that compliance with the FOI requests was not required until the hearing and determination of the proceedings between Esso and the State Entities.  On 3 March 2000 the fourteenth cross-respondent, the State of Victoria (“the State”) moved the Court for orders that the requests be withdrawn and for a declaration that the State entities to whom the requests were addressed were not required to process them until the hearing and determination of the proceedings between Esso and the State entities.

12                  Meanwhile Esso’s solicitors contended that the State entities, to whom the FOI requests were made, were not complying with their obligations under the Act in respect of the requests, which were amended by Esso on 17 March 2000.  The relevant State entities’ solicitors contended that it was inappropriate for them to process the requests until the hearing of their motion and, in any event, they stated that the amended requests illustrated that the original requests did not satisfy the requirements of the FOI Act.

13                  In support of its motion the State adduced evidence that the FOI requests would:

·        overlap with the documents the subject of the discovery order;

·        require the State entities to make enquiries beyond the limited enquiries required of the State entities under the discovery order;

·        require that access be given to documents substantially in excess of that required as a result of the discovery order;

·        require an allocation of resources to enable compliance with the requests, which would be likely to interfere with the capacity of the State entities to comply with the discovery order.

14                  The State claims that the FOI requests are an abuse of process, are vexatious and oppressive in that they undermine the integrity of the Court’s discovery processes and have the tendency to interfere with the administration of justice in the principal proceedings.  The State seeks declaratory relief that Esso’s conduct, in lodging the FOI requests and in asserting an entitlement to have them processed under the FOI Act, was unlawful and that the relevant State entities are not required to process the requests prior to the hearing and determination of the proceedings in the Court, or at all.  Injunctions are also sought requiring Esso to withdraw the FOI requests, or, in the alternative, restraining the processing of the requests.

15                  The State submitted that the FOI requests gave Esso a collateral advantage in that they require the making of enquiries and the providing of access to documents beyond that required by the discovery order.  It also contended that when discovery processes have been invoked a party is not entitled to make FOI requests for the purpose of supplementing that process by obtaining documents for use in the proceedings in addition to those discovered.  The diversion of resources, double handling of documents and the provision of access to documents that are not the subject of the discovery orders were said, cumulatively, to afford the primary basis for the relief sought by the State.

16                  Esso disputes the contentions of the State.  It claims that the evidence does not establish that the FOI requests are in fact interfering with the Federal Court processes.  In any event, the State contends that the FOI Act confers an entitlement to request and obtain access to government documents in accordance with the procedures laid down in the Act and that this entitlement remains unhindered by any Court processes taking place at the same time.

17                  Although Esso concedes that the FOI Act does not permit or allow an interference with the administration of justice, it contends that the exercise of collateral rights under the FOI Act cannot constitute such an interference.

18                  Finally, Esso submits that the application for relief is premature as there is not yet any conflict between the Court, and the FOI, procedures.  It submits that the FOI Act contains a carefully prescribed statutory scheme for the processing of FOI requests, and that the burden (if any) of Esso’s FOI requests is yet to be determined.  Thus, Esso contends that even if there was a basis in law for the relief sought by the State, the application for relief is premature until the conflict (if any) between the two procedures emerges.

The FOI Act and the FOI requests

19                  The FOI Act confers, as a public right, the right of any member of the community to request access to information contained in documents in the possession of the Government of Victoria and other bodies constituted under the law of Victoria: see ss 3, 17 and 20.  Section 17(1) provides that any person who wishes to obtain access to a document of an agency or an official document of a Minister shall make a request in writing to the agency or the Minister for access to the document.  Section 17(2) requires that the request provide sufficient information to enable the identification of the documents sought.  Section 17(4) states that the request shall not be refused on the ground that it does not comply with s 17(2) without the applicant having been given a reasonable opportunity of consultation with the agency with the view to making a request in a form that complies with s 17(2).

20                  Section 25A specifies one of the circumstances in which a request may be refused.  Relevantly for present purposes, s 25A(1)(a) provides that the request may be refused where the agency or minister is satisfied that the work involved in processing the request in the case would substantially and unreasonably divert the resources of the agency from its other operations.  Access is also not required to be given to exempt documents, being documents that are exempt by virtue of a provision of Pt IV: see ss 5 and 20(2).  Exempt documents include documents which would be likely to prejudice the proper administration of the law or justice in a particular case or instance: see s 31(1)(a) and (b).

21                  Part VI of the FOI Act provides for review, by the Victorian Civil and Administrative Tribunal, of certain decisions under the Act, including decisions refusing to grant access (s 50(2)(a)).

22                  The processing of Esso’s FOI requests is presently at the consultative stage provided for under s 17(4), as no decision has yet been made to refuse to comply with the requests: see ss 17(2) and (4).  Thus, the agencies concerned have not been required to consider whether the provisions of s 25A(1) apply.  However, on the basis of the evidence adduced and the contentions made to the Court by the State, it is likely that, sooner or later, the sub-section will be relied upon.  Additionally, it remains to be seen whether any of the documents requested are exempt under s 31(1) or any other provision of the FOI Act.

23                  If a decision is made under the Act refusing to grant access to a document sought in accordance with the FOI requests, then Esso will be entitled to apply for the review of that decision by the Tribunal under s 50(2)(a).  Until the matters to which I have referred are resolved the nature and extent of the burden imposed on the State entities to whom the FOI requests were made will be problematic.

24                  In the circumstances outlined above there is obvious force in Esso’s contention that the State entities have not established in fact that the FOI requests have conflicted or interfered with, or undermined, their ability to comply with the discovery order.  The State entities have not yet determined whether to treat the requests as valid and, if they are so treated, whether access will, nevertheless, be refused under s 25A(1).  In these circumstances it is difficult to accept that the resources that would be required to be devoted to the FOI requests by the State entities have interfered with or are likely to interfere with the State’s ability to comply with the discovery order.

25                  One aspect of the FOI requests is troubling.  Esso failed to obtain the wider orders for discovery it sought because I concluded that it would have been oppressive to impose any further discovery obligations on the State entities at that stage.  Notwithstanding that finding,  Esso, almost immediately, lodged the FOI requests for access to documents in categories that are significantly wider than those specified in the discovery order.  An issue therefore arises as to whether there is any limitation on Esso’s right to make those requests under the FOI Act.

Limitations upon FOI rights

26                  The starting point for the consideration of any limitation on a right to request and assert an entitlement to access to documents under the FOI Act must be the Act itself.  The principle of “open” Government resulted in the Act conferring a public right of access to official documents of the Government and its agencies for the reason that it is in the public interest to do so.  Accordingly, the purpose for which a person wishes to obtain access to a document is of no relevance to that person’s right of access and need not be disclosed as a basis for seeking access.  Thus, the right to requested access is not in any way restricted by the purpose for which access is being sought.

27                  In order to protect the right of access, and the obligation to provide it, from being abused or misused the legislature has carefully prescribed the procedures that are to be followed to obtain access to the documents requested (ss 17-24), as well as the grounds upon which access may be refused (ss 24A-27 and Pt IV).  The legislature has not granted any general exemption in respect of agencies involved in litigation.  Rather, by s 31, it has chosen to exempt specific “law enforcement” documents where, for example, disclosure of those documents would be likely to prejudice investigations of breaches of the law, proper administration of the law in a particular instance, or the fair or impartial trial of a particular case (s 31(1)(a) and (b)).

28                  In these circumstances there is much to be said for the view that the only limitations imposed on the right of access to documents, even when litigation is pending, are those found in the Act.  As was said in the majority judgment of the US Supreme Court in Environmental Protection Agency v Mink 410 U.S. 73 (1973), in respect of analogous legislation:

“Without question, the Act is broadly conceived. It seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands”.

29                  Does the fact that the person making the request is also a party to litigation against the agency to whom the request is made alter that situation?

30                  The public right of access to documents under FOI legislation in the State of New York has led Courts in that State to point out that, as the standing of the person seeking access to records under FOI legislation is as a member of the public, that standing is neither enhanced nor restricted because the person is also a litigant or a potential litigant: see Moussa v State of New York 458 N.Y.S. 2d 377 (A.D. 1982) and the cases there cited.  In its decision In the Matter of M. Farbman & Sons Inc v New York City Health and Hospitals Corp 62 N.Y. 2d 75 (1984) the Court of Appeals of New York considered the statutory FOI rights of a litigant seeking disclosure of documents from a public authority in order to assist the litigant in the conduct of its litigation against the authority.  The Court observed that:

·        the right of access is not affected by the fact that there is pending or potential litigation between the person making the request and the agency to whom the request is made (at 78);

·        full disclosure by government agencies under FOI legislation is a public right and in the public interest, irrespective of the status or need of the person making the request (at 80);

·        the legislative policy of open disclosure requires that an agency’s public records remain as available to its litigation adversary as to any other person (at 81);

·        if the legislature had intended to exempt agencies involved in litigation it certainly could have so provided (at 81).

31                  The observations of the Court of Appeals of New York concerning the right of access under the New York FOI legislation where litigation is pending, are equally applicable to the FOI Act in respect of the access being sought by Esso in the present case.  When called upon to consider the principles applicable to the FOI Act the Supreme Court of Victoria has acknowledged the public interest in “open” government and in the general right of access conferred by the Act.  As a result, the Act is to be construed liberally and the exceptions narrowly.  See Ryder v Booth [1985] VR 869 at 877 and 879 per Gray J; Department of Premier and Cabinet v Birrell [1990] VR 51 at 53 per Murphy J; Accident Compensation Commission v Croom [1991] 2 VR 322 at 323 per Young CJ and Sobh v Police Force of Victoria [1994] 1 VR 41 at 60-61 at 64 per Ashley J.

32                  In Victorian Public Service Board v Wright (1996) 64 ALR 206 at 212 the High Court, in discussing the combined effect of ss 3 and 16 of the FOI Act said:

“In the light of these sections it is proper to give to the relevant provisions of the Act a construction which would further, rather than hinder, free access to information”.

33                  Although the Supreme Court of Victoria has not had to dealt directly with the issue arising in the present case in Sobh Brooking J (at 50)commented:

“To do something which is or results in a departure in some sense from existing practice and procedure is not necessarily to prejudice the proper administration of the law.  It is clear that in s. 31(1)(a) the proper administration of the law includes civil law: Accident Compensation Commission v. Croom [1991] 2 V.R. 322.  Now we all know that the Freedom of Information Act is often used for the furtherance of civil proceedings.  We have in the Rules of Court provision not only for discovery in ordinary cases but also for discovery to identify a defendant, discovery from a prospective defendant and discovery from a non-party: O.  32 of Ch. I. Disclosure of the documents might be sought under the Act in a wide variety of situations.  The agency or the minister, or the Crown, might or might not be a party or a possible party to existing or contemplated litigation.  It is O. 29 and O. 32, aided by judicial decisions, which determine, so far as the Supreme Court is concerned, whether and at what stage and in what circumstances discovery and inspection of documents may be obtained in or for the purposes of pending or contemplated litigation.  I cannot believe that it would be seriously argued that disclosure of a document under the Act would prejudice the proper administration of the law if its production would confer upon a litigant or prospective litigant an advantage which he does not enjoy under our civil practice and procedure.”

34                  Nevertheless, his Honour (at 51) accepted that disclosure of a document might, in some situations, prejudice the proper administration of the law for the purposes of s 31(1)(a) of the FOI Act but said that such matters would have to be determined on a case by case basis.

35                  In Farbman & Sons the court also stated (at 82) that, although it is a matter of concern that FOI legislation might be used during litigation for improper purposes, such as harassment and delay, the potential for abuse in that way is, in a sense, the price of open government and should not be invoked to undermine the statutory right.  I agree that any “misuse” of the FOI Act ought not lead to an interpretation of the Act that undermines the statutory rights it confers.  However, there might be some limitations on the exercise of the right of access under the Act if the exercise of the right is calculated, or has the tendency, to interfere with the administration of justice or the processes of the Court in a particular case.

36                  Plainly, if any statutory power is exercised with an intention to interfere with the administration of justice, or where there is a real risk that the exercise of the power would, in the circumstances, have that effect the principles relating to contempt of Court will be applicable: see for example Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25, Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460 at 467-468 and Sentry Corporation v Peat Marwick Mitchell & Co (1990) 95 ALR 11 at 39-41.  Contempt cases of the kind to which I have referred usually arise in the context of the exercise of coercive or compulsive statutory investigatory powers in a matter which is the subject of pending litigation in a court in circumstances where the court’s procedures deny, or do not permit, the exercise of such powers in the course of the judicial process.  The issue in such cases is whether the exercise of the coercive or compulsive power is intended to interfere with the administration of justice or carries a real risk that it would have that effect.

37                  The present case involves quite different issues.  There is no question of the exercise of any coercive or compulsory statutory investigatory power or anything analogous thereto.  Rather, the FOI Act involves the exercise of a right conferred upon all members of the public to have access to government documents, subject to the provisions and the exemptions provided for in the Act.  As explained, the exemptions include documents whose disclosure might interfere with the due administration of justice.  Thus, it is difficult to envisage how the exercise of a right to make a request under the FOI Act, which itself contains procedures to ensure there is no interference with the administration of justice, can constitute a contempt of Court.

38                  However, the State contends that Esso’s right to make the FOI requests and to demand that the requests be processed under the Act confer collateral advantages that are inconsistent with, and undermine, the Court’s discovery processes.  One answer to that contention is that the FOI Act affords members of the public, who are litigants in a Court proceeding, a collateral, but lawful, means of seeking to obtain and present the evidence needed for the presentation and conduct of the litigant’s case.

39                  An analogous issue was considered by the House of Lords in South Carolina Co v Assurantie N.V. [1987] 1 A.C. 24.  In South Carolina the defendants to a proceeding in the United Kingdom lodged a petition in a federal District Court in the United States seeking an order for pre-trial discovery of documents relevant to the claim the subject of the English proceeding.  The discovery was sought against United States residents who were not parties to the English proceeding.  The House of Lords upheld an appeal against the granting of an injunction restraining the defendants from taking any further step in the American proceedings or enforcing any order for depositions in those proceedings.

40                  Lord Brandon (with whom the other members of the House of Lords agreed) explained (at 41) that, on the facts of the case, the only applicable basis for an injunction of the kind granted was that the defendants had acted in an “unconscionable” manner, which included “conduct which is oppressive or vexatious or which interferes with the due process of the court”.  In the course of rejecting the argument that the defendants’ conduct fell within that category, Lord Brandon observed (at 41) that the court “does not, in general, exercise any control over the manner in which a party obtains the evidence which he needs to support his case”.  Subject to the help of the Court, which might be given in various ways, and which included discovery, Lord Brandon said (at 42) “the basic principle underlying the preparation and presentation of a party’s case in the High Court in England is that it is for that party to obtain and present the evidence which he needs by his own means, provided always that such means are lawful in the country in which they are used”.  Lord Brandon said (at 42) that, since the federal law of the United States authorised an application of the kind made by the defendants, the making of the application, which might or might not succeed in whole or in part, could not be regarded as an interference with the due process of the English court.  His Lordship added that all that the defendants had done was what any party preparing a case in the High Court was entitled to do, namely, to try and obtain in a foreign country, by means lawful in that country, documentary evidence which they believed they need in order to prepare and present their case.

41                  In CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391-392 Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ citing, inter alia, South Carolina, observed that the “unconscientious exercise of a legal right” can found an injunction to restrain the bringing or further prosecution of a proceeding.

42                  The approach of the House of Lords in South Carolina is also consistent with that adopted by the High Court in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477.  In Caltex Refining the prosecutor of a proceeding against a company charged with a statutory offence under the Clean Waters Act 1970 (NSW) was served with a notice under s 29(2)(a) of that Act requiring the production of certain documents relating to the offence.  While Caltex Refining was, in part, concerned with the construction of s 29(2)(a) and, in particular, whether the investigatory powers conferred by the section were able to be used when a prosecution has commenced in a court, certain observations made in the case are relevant to the issues arising in the present case.

43                  Mason CJ and Toohey J (at 507) said that resort to the statutory power for a purpose which was open under the Court’s own processes cannot amount to an abuse of process.  Relevantly, for present purposes, the Court’s discovery processes can be utilised by Esso to apply for discovery of the documents sought by it under the FOI Act.  There is nothing in the nature of the Court’s processes in a civil proceeding that would not permit an application to be made, and granted, for discovery of the documents the subject of the FOI requests.  Whether the Court would exercise the power to order discovery or compel inspection of the documents is a matter that would depend on the circumstances.  I do not regard the restricted and staged discovery orders made to date as precluding Esso from applying for discovery of the documents it has requested under the FOI Act.

44                  In any event, as Brennan J pointed out (at 517-518), “[t]here is no abuse of the court’s process in a party’s taking advantage of a legitimate means of obtaining evidence to be used in pending litigation”.  Similarly, McHugh J (at 558-559) observed that obtaining evidence under a statutory power for the purpose of assisting a party in pending litigation does not necessarily constitute an interference with the procedures of the Court, as the evidence gathering procedures of a party are not limited to the use of Court proceedings.  His Honour added:

“No interference with the process of the Courts or the course of justice occurs merely because a party avails itself of a statutory power to obtain evidence during the course of pending litigation.  The mere use of such a power during the pendency of litigation is not a contempt of Court even when the sole purpose of the exercise of the power is to assist a party to obtain evidence for use in that litigation.”

45                  McHugh J accepted that the exercise of a statutory power might constitute a contempt if it gave a party advantages which it would otherwise be denied by the rules of procedure but, nevertheless, concluded that something more is required than a finding that the party exercised the power for the purpose of obtaining evidence for use in pending litigation.

46                  The State relied on the observations of McHugh J claiming that there might be a contempt by the exercise of statutory power where “advantages” are obtained.  As explained earlier, his Honour was referring to the exercise of a compulsive statutory power and not the exercise of a public right.  In any event, in making the observation relied upon by the State McHugh J specifically cited a passage from the judgment of Gibbs CJ in Pioneer Concrete at 468, where his Honour was dealing with the exercise of a coercive statutory investigatory power in a situation where there is litigation pending and the court’s procedures “deny” any entitlement to apply for the exercise of such a power.  The circumstances alluded to by McHugh J in Caltex Refining, and by Gibbs CJ in Pioneer Concrete, have no application in the present case.  As explained above, the Court’s procedures not only do not deny the entitlement to apply for discovery in respect of the documents requested by Esso, but permit its procedures to be used to apply for access to those documents, which is akin to the situation that arose in respect of s 29(2)(a) of the Clean Waters Act 1970 (NSW) in Caltex Refining.  While it is true that the Court, in its discretion, may refuse to order discovery of all the documents requested, that situation has not yet arisen.  Even if it does, for the reasons set out above, I do not accept that the pursuit of access under the FOI Act to the refused documents would be unlawful.

47                  For the above reasons the contentions of the State that Esso’s FOI requests constitute an interference with the administration of justice and an abuse of process are without substance.

48                  The other main contention of the State is that the FOI requests undermined the basis upon which the limited discovery order was made and, therefore, are vexatious and oppressive, as they undermine the integrity of the Court’s processes.  In the joint judgment in CSR v Cigna (at 391) their Honours, in discussing the inherent power of a Court to prevent its processes being used to bring about injustice, said:

“The counterpart of a Court’s power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion.”

See also South Carolina Co at 41.

49                  In All-State Life Insurance Co v Australia and New Zealand Banking Group Ltd (1996) 64 FCR 61 at 70-71 Lindgren J granted injunctive relief to restrain the taking of depositions from a litigant’s legal representatives in the United States, on the ground that the taking of the depositions was vexatious and oppressive because:

·        it would interfere with the legal representatives’ preparation for and/or conduct of the trial pending in the Federal Court; and

·        the disparity in material procedures available to the parties would intrude upon the proceedings before the Court if the depositions were to proceed.

50                  Lindgren J considered it appropriate to grant the relief sought to protect the integrity of the Court’s processes because, on the question of fact, his Honour found that the depositions would interfere with the conduct of the proceedings in the Federal Court.  If I had arrived at the same conclusion in the present case in respect of Esso’s conduct, orders to protect the integrity of the Court’s processes would be appropriate on the ground that the conduct in question would be “unconscionable” in the sense that it was “vexatious and oppressive”: see South Carolina at 40-41 and CSR v Cigna at 391-392.  However, as Lindgren J said (at 72) in All-State, whether, the conduct is vexatious or oppressive in a particular case is “always a question of fact”.

51                  If the requests made and pursued by Esso under the FOI Act required the State entities to simultaneously comply with their obligations to make discovery under the discovery order and to seek out, and provide to Esso, the documents requested under the FOI Act, then it may be appropriate for the Court to intervene.  In such a case the intervention is necessary in order to protect the integrity of those processes and it would be appropriate to make orders that ensured that any requirement imposed on the State entities to comply with the FOI Act was deferred so that it did not undermine the integrity of the Court’s processes: cf National Labor Relations Board v Robbins Tire Rubber Co 437 U.S. 214 (1978) at 242.

52                  However, that is not the present situation.  The relevant State entities have not yet agreed, or refused, to treat the FOI requests as amended, as valid requests under the FOI Act.  Even if the requests are treated as valid requests under s 17(1), the question will arise as to whether the requests are to be refused under s 25A of the FOI Act which, relevantly, provides:

“(1)  The agency…dealing with a request may refuse to grant access to documents in accordance with the request, without having caused the proceeding of the request to have been undertaken, if the agency…is satisfied that the work involved in processing the request –

(a)   … -would substantially and unreasonably divert the resources of the agency from its other operations;”

53                  Finally, if the requests are not treated as valid requests under s 17(1) of the FOI Act, or are refused under s 25A(1)(a), the decision may be reviewed under Pt VI of the Act.

54                  The procedures involved in the State consulting with Esso, as required under s 17(4) and making a decision as to the validity of the requests under s 17(1) do not in any way interfere with the ability of the State entities to comply with the discovery order.  For present purposes I will assume that the State entities will be entitled to an extension of time within which they are to comply with the discovery order.  However, even making that assumption, no oppression or vexation has arisen.  Nor, given the likely time frame for the FOI Act and the discovery processes to be completed, is it likely to arise in the near future.  Ultimately, I am not satisfied, on the evidence before the Court, that the simultaneous processing of the FOI requests, in accordance with the procedures provided for under the FOI Act, is likely to interfere with the State entities’ ability to complete discovery in accordance with orders of the Court.

Conclusion

55                  I have concluded that the FOI Act does not authorise any right or power conferred under the Act to be exercised in a manner that constitutes an interference or likely interference with the administration of justice or the exercise of federal judicial power in the Court.  However, for the reasons given, I am satisfied that, in the present case, there has not been an interference or likely interference with the administration of justice or the exercise of judicial power.  For substantially the same reasons there has been no abuse of power, nor an abuse of any right conferred, under the FOI Act.

56                  I have also concluded that the right of access to documents under the FOI Act cannot be exercised in a manner that is vexatious or oppressive in the sense that it interferes with or undermines the integrity of the processes of the Court.  However, for the reasons given, I am satisfied that Esso’s conduct in making the FOI requests and asserting that it is entitled to have them processed under the FOI Act is not vexatious or oppressive conduct.

57                  In these circumstances the motion of the State is to be dismissed with costs.

Associate:

Dated:              17 April 2000