FEDERAL COURT OF AUSTRALIA

Police Federation of Australia v Nixon [2010] FCA 315

THE COURT ORDERS THAT:

1.                  The first respondent by 16 April 2010 deliver to the Associate to Ryan J in a sealed envelope or other container a clear copy of each of the documents enumerated in Appendix A to the reasons of the Court published this day, other than the documents numbered 54 and 74.

2.                  The second respondent by 16 April 2010 deliver to the Associate to Ryan J in a sealed envelope or other container a clear copy of each of the documents enumerated in Appendix B to the reasons of the Court published this day.

3.                  The applicants’ motion on notice dated 30 July 2009 be otherwise refused.

4.                  It be declared that the first respondent is not required to conduct further searches for electronic documents stored on Victoria Police “G drives”.

5.                  Item 10 of the applicants’ list of categories of documents to be discovered by the respondents be deleted and replaced with “The final signed version of the 2006 Agreement referred to in paragraph 76 of the second further amended statement of claim”.

6.                  The respondents’ motion on notice dated 30 July 2009 be otherwise refused.

7.                  There be a further directions hearing herein on a date to be fixed after the Court has completed its inspection of the documents ordered by paragraphs 1 and 2 above to be produced to it.

8.                  Liberty be reserved to any party to apply on not less than 48 hours’ notice in writing to the other parties.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     I have previously published two sets of reasons on interlocutory aspects of this application:  Police Federation of Australia v Nixon [2008] FCA 467, and Police Federation of Australia v Nixon [2008] FCA 752.  I intend that the present reasons should be read in conjunction with the earlier reasons, which will obviate the need to rehearse again the factual background to the proceedings.

2                     Now before the Court are two motions on notice, each dated 30 July 2009. The applicants move the Court for orders, so far as is relevant:

1.         That the First Respondent produce for inspection by the Applicants the documents listed in Part 2 of Schedule 1 of the First Respondent’s Final List of Documents dated 27 July 2009.

2.         That the Second Respondent produce for inspection by the Applicants the documents listed in Parts 2 and 3 of Schedule 1 of the Second Respondent’s Final List of Documents dated 28 July 2009.

3.         That the First Respondent file and serve a supplementary affidavit of documents providing further and better discovery in relation to the documents referred to in paragraphs 17 to 23 of the First Respondent’s Final List of Documents dated 27 July 2009.

The respondents, in turn, move for orders, again, so far as are relevant, that;

1.         The first respondent is not required to conduct further searches for electronic documents stored on “G drives”;

2.         Item 10 of the applicants’ list of categories of documents be deleted and replaced with ‘The final signed version of the 2006 Agreement referred to in paragraph 76 of the SFASOC’;

3.         On or before 11 September 2009, the applicants file and serve a supplementary list of documents in accordance with Order 15 rule 6 and Form 22 in respect of any documents upon which they intend to rely;

4.         On or before 11 September 2009, the respondents file and serve a supplementary list of documents in accordance with Order 15 rule 6 and Form 22 in respect of any documents upon which they intend to rely, and in respect of any documents found by the first respondent in the remaining searches described in paragraphs 12 to 21 to the affidavit of Stuart Roy McKenzie sworn 27 July 2009;

5.         On or before 21 September 2009, the parties make the discovered documents available for inspection…

3                     Schedule 1 Part 2 of the first respondent’s Final List of Documents is reproduced as Appendix A to these reasons and comprises documents to which I shall collectively refer as the Schedule 1 Part 2 Documents.  Those documents have been described in an affidavit by Mr McKenzie of the Legal Services Department of the Victoria Police sworn 27 July 2009, as “various documents constituting part, or copies of a part, of a Victoria Police investigation file (including electronic copies of documents) contained on the investigation file and diary notes”.  Mr McKenzie, touching on several points to which it will be necessary to return, then deposes that;

7.         The investigation file was established by the Ethical Standards Department in response to a complaint received by Assistant Commissioner Luke Cornelius in early 2006. The complaint related to alleged bullying in relation to a member of the Victoria Police. The allegations of bullying were capable of constituting breaches of discipline, which in turn fell within the definition of ‘serious misconduct’ within the Police Regulation Act 1958 (Vic) (PR Act). In June 2006, this investigation was expanded to investigate further allegations of serious misconduct relating to alleged victimisation.

8.         Pursuant to s.86LA of the PR Act, if a member of the force makes a complaint to a member of the force, of a more senior rank, about the serious misconduct of another member (other than the Chief Commissioner), then the WP Act is taken to apply as if the complaint were a ‘protected disclosure’ made to the Chief Commissioner under Part 2 of the WP Act.

9.         In the course of searching for relevant documents, I have caused to be reviewed the documents enumerated in Part 2 of Schedule 1, and I am advised that each of those documents is a document that contains information received in the course of or as a result of a protected disclosure under the WP Act.

10.       In the present circumstances, in which the First Respondent is providing discovery of documents in the current Federal Court of Australia proceedings, there is no exception in s.22 of the WP Act that permits the First Respondent to disclose the documents enumerated in Part 2 of Schedule 1.

11.       Further, there are documents enumerated in Part 2 of Schedule 1 which disclose the identity of, or are reasonably capable of disclosing the identity of, an internal informant/complainant or a witness to an internal Victoria Police investigation. These documents include records of the relevant complaints, witness statements and briefing notes regarding the status of the investigation. Aside from s.22 of the WP Act, documents of this type are precluded from discovery and inspection because they are subject to public interest immunity. This is because investigations of police misconduct would be seriously undermined and compromised if informants and witnesses did not have confidence that their identity could be protected if they provided information.

4                     The second respondent, the State of Victoria, has also filed a final list of documents and has objected to producing documents enumerated in Parts 2 and 3 of Schedule 1 to that list.  The documents in Part 2 of Schedule 1 to the second respondent’s list are said to be subject to public interest immunity while those in Part 3 are said to be irrelevant.  As well, documents in Part 3 numbered 24 to 40, and 43, 50, 51, 52 and 54 are claimed to be subject to public interest immunity.  Parts 2 and 3 of Schedule 1 to the second respondent’s list of documents are reproduced as Appendix B to these reasons.

5                     The respondents’ contention, foreshadowed in Mr McKenzie’s affidavit and put in submissions, is that the Schedule 1 Documents are immune from discovery by s 22 of the Whistleblowers Protection Act 2001 (Vic) (“the W P Act”), and, if there be any which are not excluded from production by that provision, by public interest immunity afforded by the general law.  It is convenient to consider first the operation of the W P Act.

The Whistleblowers Protection Act 2001 (Vic)

6                     The purposes of the W P Act, are, by s 1, to encourage and facilitate disclosures of improper conduct by public officers and bodies, to provide protection to those who make disclosures or who may be affected by disclosures, and to provide for the matters disclosed to be investigated and dealt with.  Of importance to the matter currently before the Court is s 22, which prohibits, subject to the exceptions in s 22(1)(a), the disclosure of information received in circumstances which constitute it a “protected disclosure”, or where in the information is connected with the “investigation of a disclosed matter”. The section provides, in relevant part:

22.       Offence to reveal confidential information

(1)        A person who obtains or receives information in the course of or as a result of a protected disclosure or the investigation of a disclosed matter under this Act must not disclose that information except for the purposes of—

(a)        the exercise of the functions under this Act of the President of the Legislative Council, the Speaker of the Legislative Assembly, the Ombudsman, the Deputy Ombudsman, the Chief Commissioner of Police or a public body; or

(b)        any report or recommendation to be made under this Act; or

(c)        any report referred to in Part 9; or

(d)        any proceedings in relation to an offence against section 60 or section 106 or this section or section 19 of the Evidence Act 1958; or

(e)        any criminal or disciplinary proceedings taken against a member of the police force as a result of an investigation of a disclosed matter by the Chief Commissioner of Police under Part 7.

Penalty:  60 penalty units or 6 months imprisonment or both.

(emphasis added).

7                     The term “protected disclosure” as used in s 22 is defined in ss 3 and 12 as a disclosure made in accordance with Part 2.  Part 2 (ss 5-10), in turn, relevantly makes provision for who may make a disclosure about improper conduct (s 5) and to whom such a disclosure can be made (s 6). Section 6 provides, in relevant part:

6.         To whom can a disclosure be made?

…

(4)        A disclosure that relates to the Chief Commissioner of Police must be made to the Ombudsman or the Deputy Ombudsman.

(5)        A disclosure that relates to any other member of the police force may be made to—

(a)        the Ombudsman; or

(b)        the Deputy Ombudsman; or

(c)        the Chief Commissioner of Police.

The operation of Part 2 of the W P Act is then broadened by s 86LA of the Police Regulation Act 1958 (Vic) (“the P R Act”) which, in terms, expands the category of persons to whom a disclosure to which Part 2 of the W P Act applies may be made.  That section provides:

86LA   Whistleblowers Protection Act 2001 applies to certain complaints

(1)        If a member of the force makes a complaint in accordance with section 86L(2A) to a member of the force of a more senior rank about a member other than the Chief Commissioner, the member receiving the complaint must refer the complaint to the Chief Commissioner.

(2)        The Whistleblowers Protection Act 2001 applies to a complaint referred to in subsection (1) as if the complaint were a disclosure made to the Chief Commissioner in accordance with Part 2 of that Act.

(3)        The Whistleblowers Protection Act 2001 applies to a complaint made by a member of the force in accordance with section 86L(2A), to the Director about the Chief Commissioner, as if the complaint were a disclosure made to the Director in accordance with Part 2 of that Act.

(4)        The Whistleblowers Protection Act 2001 applies to a complaint made by a member for the force in accordance with section 86L(2A), to the Director about any other member of the force, as if the complaint were a disclosure made to the Director in accordance with Part 2 of that Act.

8                     The combined effect of those statutory provisions is that, where a member of the Victoria Police makes a complaint about a more senior officer, that complaint is, by force of s 86LA of the P R Act, treated as if it were a complaint made under Pt 2 of the W P Act.  The provisions of Pt 2 of the W P Act then operate, relevantly, to prohibit the disclosure of information received in the course of, or as a result of, a disclosure made under, or in the investigation of a matter disclosed pursuant to, the P R Act.  That being the statutory scheme, it is now necessary to examine the events which have given rise to the present proceedings.

9                     The initial information, furnished by way of complaint was, according to Assistant Commissioner Cornelius in his affidavit sworn 30 January 2008, related to “serious misconduct”, which is defined in s 86A of the P R Act in these terms:

serious misconduct, in relation to a member of the force, means –

(a)        conduct which constitutes an offence punishable by imprisonment; or

(b)        conduct which is likely to bring the force into disrepute or diminish public confidence in it; or

(c)        disgraceful or improper conduct (whether in the member’s official capacity or otherwise).

On the view taken by Commissioner Cornelius, the initial complaint was thus of a type contemplated by s 86L(2A) of the P R Act, which provides:

(2A)     A member of the force must make a complaint to a member of the force of a more senior rank to that member, or to the Director, about the conduct of another member of the force if he or she has reason to believe that the other member is guilty of serious misconduct.

10                  It follows that the disclosure made in the course of making the subject complaint was a “protected disclosure” for the purposes of s 22 of the W P Act, and thereby attracted the application of that section, including its provisions going to penalty.

11                  The affidavit of Assistant Commissioner Cornelius also reveals that information related to the complaint has been received by himself and Superintendents Tony Biggin and Tim Cartwright, the officers assigned to investigate the matter, and by the first respondent, in her then capacity as Chief Commissioner.  By operation of the mechanism for delegation contemplated by ss 5–6A of the P R Act, Assistant Commissioner Cornelius received the information on behalf of Chief Commissioner Nixon.  It is not disputed, as I understand it, that, pursuant to the same mechanism, the Superintendents just mentioned also received the disclosed information as if it had been received by the Chief Commissioner.

12                  It follows, I consider, that the Schedule 1 Part 2 Documents are protected from production by force of s 22 of the W P Act.  The plain meaning of s 86LA of the W P Act, read with Part 2 of the P R Act, entails that conclusion.  If it matters, the same conclusion is reinforced by s 35 of the Interpretation of Legislation Act 1984 (Vic), which is partly analogous to s 15AB of the Acts Interpretation Act 1901 (Cth).  Section 35(a) of the Victorian Act provides that a Victorian statute is to be read so as to “promote the purpose or object underlying the Act”.  Here, the purpose, discernible from s 22(1) of the W P Act, noted at [6] of these reasons, is to protect both persons who make disclosures and persons “who may suffer reprisals in relation to those disclosures”: see s 1(b)(ii).  A reading of s 22 of the W P Act which restricts its operation so as not to protect from disclosure documents produced, or identities disclosed, during or in consequence of an investigation of “serious misconduct” by a “public officer” would not conduce to the achievement of the express objects of the W P Act. Such considerations are subsidiary, however, to what I regard as the clearly preferable interpretation of s 22, which is that it protects from disclosure information brought into existence or gathered in the course of making, receiving or investigating a complaint of the kind outlined at [9]-[11] above.

13                  It will be apparent that the interpretation of the W P Act which I favour has the consequence that some of the Schedule 1 Part 2 documents are of such a character, as evidenced simply by their description, that s 22 precludes their production.  That applies self-obviously to the written complaint numbered 54 and the witness statements numbered 73 in Appendix A to these reasons.  (I assume the witness statements to have been compiled in the course of investigating the original complaint).  However, the remaining Schedule 1 Part 2 documents do not necessarily appear from their description to be confined to information obtained or received in the course of, or as a result of, a protected disclosure or the investigation of a disclosed matter within the meaning of s 22(1) of the W P Act.  In that sense, assuming that each such document would otherwise be relevant and production of it necessary as provided by O 15 r 15 of the Rules of this Court, it may be appropriate for the Court to consider each of the remaining Schedule 1 Part 2 documents for the purpose of deciding whether, in whole or in part, the document is not subject to production because it contains information of the kind described in s 22(1) of the W P Act.

14                  That course is frequently taken where some sensitivity attaches to the documents in question as happened with the documents considered by Wilcox J in Jackson v Wells (1985) 5 FCR 296; see esp. at 308.  The circumstances of the present case were said by Mr Parry SC, who appeared with Mr Richard Dalton of Counsel for the respondents, to be of the kind indicated by Wilcox J.  Mr Parry went on to note that:

In the circumstances of the case, the apparent breadth of s.22 of the WP Act and the sensitivity of information regarding the identity of complainants and witnesses, the respondents’ counsel and solicitors have not had access to the documents.

Because some of the Schedule 1 Part 2 documents are also subject to a claim of public interest immunity, I shall return, after examining that ground of exemption from production, to consider how each of the Schedule 1 Part 2 documents should be treated.

General Law Public Interest Immunity

15                  It may be accepted that s 22 of the W P Act, read with the other provisions to which I have referred,is of broad application and, for the reasons outlined above, precludes the production of the whole or part of many of the Schedule 1 Part 2 Documents. There may be some, however, which on examination will not obviously be caught by s 22, but which are still protected from production by application of the common law doctrine of public interest immunity which is recognised by O 15 r 17 of the Rules of this Court.

16                  It is convenient to set out the statements of principle which bind the Court in giving effect to this claim of immunity. They are to be found in Sankey v Whitlam (1978) 142 CLR 1, where Gibbs ACJ said, at 38-9, that:

The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer [[1968] AC 910 at 940] as follows:

“There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.”

It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies. In other cases, however, as Lord Reid said in Conway v Rimmer [[1968] AC 910 at 940], "the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it". In such cases once the court has decided that "to order production of the document in evidence would put the interest of the state in jeopardy", it must decline to order production.

In a similar vein, Stephen J said, at 48-9:

Crown privilege involves two principles which are of quite general importance to our system of government and of justice. Such is the vigour and breadth of these principles that each, given its fullest extent of operation, will at its margins encounter and conflict with the other. This case involves just such a conflict and it is with its resolution that the Court has to concern itself.

These principles, stated in their broadest form, each reflect different aspects of the public weal. Because disclosure to the world at large of some information concerning sensitive areas of government and administration may prejudice the national interest there exists a public interest in preventing the curial process from being made the means of any such disclosure. At the same time the proper administration of justice, of prime importance in the national interest, requires that evidence necessary if justice is to be done should be freely available to those who litigate in our courts.

See also, generally, the authorities collected in Cross on Evidence (7^th Aust. Ed.) at 872 [27025], et seq. 

17                  The immunity is claimed on behalf of the respondents in two ways. The first, a “contents claim” is made in relation to the investigation file, on the footing that it would be against the public interest to disclose its contents.  The second, a “class claim” is made generally over the various Schedule 1 Part 2 documents on the basis, as it was put in written submissions, that;

… there is a strong public interest in ensuring that improper conduct of members of the police force can be exposed. This can only occur if people feel that they can make complaints about such improper conduct and/or provide witness accounts of such conduct without reprisals. To the extent that there is information in the documents in Part 2 of Schedule 1 that could identify a complainant or witness, or lead to the identification of such persons, then the Court should require that the contents of those documents not be disclosed.

18                  As I understand it, the “investigation file” is no more than a collation in a single file of the Schedule 1 Part 2 documents.  Accordingly, it is unnecessary to consider it separately from the “class claim” made by the respondents in respect of the Schedule 1 Part 2 documents and the documents enumerated in Parts 2 and 3 of the Schedule to the second respondent’s list of documents which is reproduced as Annexure B to these reasons.

19                  The primary contention of the second respondent is that the documents listed in Appendix B as indicated by the description of each of them are immune from production by reason of their relation to “matters of state”, i.e. that they are:

…subject to public interest immunity on grounds including that they contain information relating to, or are concerned with, deliberations at the highest levels of government in the State of Victoria, they are drafts whose release would inhibit the exchange of frank and candid information and advice within government, they would disclose preliminary or draft views which are not determinative of the government’s final position, and they may mislead or create confusion in debate in the publicarena.

20                  Particular emphasis in that connexion is placed upon the words of Gibbs ACJ in Sankey v Whitlam, supra, at 40, where his Honour said:

Of course, the object of the protection is to ensure the proper working of government, and not to protect Ministers and other servants of the Crown from criticism, however intemperate and unfairly based. Nevertheless, it is inherent in the nature of things that government at a high level cannot function without some degree of secrecy. No Minister, or senior public servant, could effectively discharge the responsibilities of his office if every document prepared to enable policies to be formulated was liable to be made public. The public interest therefore requires that some protection be afforded by the law to documents of that kind. It does not follow that all such documents should be absolutely protected from disclosure, irrespective of the subject matter with which they deal.

21                  The second respondent then relies upon an affidavit of Lissa Ruth Zass, sworn on 17 August 2009. Ms Zass is the Assistant Director, Projects and Research, Justice Policy, in the Department of Justice in the Victorian Government. The thrust of that affidavit is that documents 14 to 22 in Part 2 of the list reproduced in Appendix B were made for the internal use of the Victorian Government in considering issues surrounding the Victoria Police Bill, or, as she says at paragraph 34 of her affidavit:

Documents numbered 14 to 22… are all documents relating to proposed amendments to the PR Act that were being considered by the government at the time. They include documents that record the outcomes of the stakeholder consultation process, including options for the Minister to consider regarding future legislative models.

Document 23, she deposes, was created for similar purposes by Rachel Dapiran, an adviser to the then Premier of Victoria.

22                  In the light of those assertions, it is necessary for the Court to strike a balance between the public interest in disclosure and the public interest in the preservation by non-disclosure of a government’s ability to function effectively.  That is the balance identified by Gibbs ACJ and Stephen J in the passages from Sankey v Whitlam set out above at [16].  As well as in Sankey, the factors which bear on striking the relevant balance have been enumerated by a Full Court of this Court in Commonwealth v Northern Land Council (1991) 30 FCR 1 at 38, as;

1.         where the contents of the documents are relied upon, the interests affected by their disclosure eg national security, relationships with foreign governments and unfair prejudice to other parties by disclosure of confidential information; where the impact of disclosure on the public interest is peculiarly within the knowledge of the Executive, its contentions will be given particular weight;

2.         where the class of documents is invoked, the public interest which immunity for the class is said to protect eg political conventions and governmental processes; in this connection the importance of the convention of collective responsibility and the confidentiality required to support it, particularly in areas of current political debate, will be accorded a high degree of respect;

3.         the extent to which the interests referred to have become attenuated by the passage of time or the occurrence of intervening events since the matters contained in the documents or the documents themselves came into existence;

4.         the seriousness of the issues in relation to which production is sought eg innocence of a criminal charge or governmental misconduct bearing upon the case;

5.         the likelihood that production of the documents will affect the outcome of the case;

6.         the likelihood of injustice if the documents are not produced.

23                  Mere exposure of government action to public discussion and criticism will not enliven the immunity, as Mason J made clear in Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, where he observed, at 52;

It can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action.

Accordingly, the court will determine the government’s claim to confidentiality by reference to the public interest.  Unless disclosure is likely to injure the public interest, it will not be protected.

I consider that, in the circumstances of the present case, his Honour’s observation applies with equal force where the discovery of a government document (rather than its publication in the media) is at issue. 

24                  The second respondent has stressed, both in submissions and in the affidavits of its solicitors, that this Court ought not to order production of documents where that would inhibit its ability to function as a government, by communicating freely and openly with its public servants about policy issues.  Mr Parry SC referred, on this point, to Taylor v Anderton [1995] 2 All ER 420, R v Chief Constable of West Midlands Police; Ex parte Wiley [1995] 1 AC 274, and, in particular, Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22.  In the last-mentioned case, after an extensive review of the authorities, Charles JA said, at 52;

… in my view public interest immunity is restricted to what must be kept secret for the protection of government at the highest levels and in sensitive areas of executive responsibility, governmental function in this context being defined to include the courts and bodies exercising statutory duties and functions in circumstances analogous to the police informer immunity.

I respectfully adopt his Honour’s words as correctly reflecting the principle.

When the Court may inspect documents for itself

25                  In the light of all the formulations of the principle which I have noted, it is necessary to decide on which side of the line a particular document falls.  In the absence of any more specific information than is afforded by the description of the documents catalogued in Appendix A and Appendix B to these reasons, it may be appropriate to have recourse to the technique proposed by Wilcox J in Jackson v Wells, supra.  In that case, his Honour was dealing with an application for review of decisions by two judges of this Court, acting as personae designatae to issue warrants under s 20 of the Telecommunications (Interception) Act 1979 (Cth).  A claim to public interest immunity was advanced and supported by affidavits described by his Honour at 305-306.  In the course of his reasons, his Honour went on to make what he called, at 307, “four final comments” about the proper approach to be adopted to such a claim for immunity.  Three of those “comments” are relevant here, and may be summarised as follows:

·        A party to a proceeding is not, where there is a clear legislative indication to the contrary, entitled as of right to see documents which have been discovered under cover of a claim of public interest immunity.  A submission to the contrary, his Honour considered, was based on an inapt analogy with what occurs when documents have been seized pursuant to a search warrant which was the case in Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952, to which his Honour had been referred;

·        When a claim of public interest immunity is made, it will not ordinarily be appropriate to reveal the contents of the subject documents to a party’s legal representatives, because (at 307-8);

It involves a number of problems. Without reflecting in any way upon the integrity of any counsel or solicitor, difficulties are likely to arise where counsel appearing in, and advising their clients in respect of, protracted and complex proceedings acquire information which they are not free to use or to pass on to their clients. During the heat of battle an unwitting disclosure may occur. Frank and full advice becomes impossible. I am aware of cases in which, for reasons such as these, experienced counsel have declined to receive information which they are not free to share with their clients. It seems to me merely commonsense to conclude that the fewer people who have access to confidential information the less is the risk of unauthorised disclosure.

·        A claim of public interest immunity need not be accepted in full; a proper approach, in the appropriate case, is for the Judge before whom the claim is made to peruse for himself or herself the documents for which immunity is claimed.  His Honour considered, at 308, that, in carrying out this exercise, the Judge should;

consider for [himself or her]self whether it extended unnecessarily widely, if necessary re-editing the material so as to reduce the extent of restriction on access

26                  In my view, it is appropriate to take, in this case, the approach suggested by Wilcox J in Jackson.  I shall therefore direct that each of the documents enumerated in Appendix A to these reasons other than those numbered 54 and 74 be delivered to my Associate in a sealed envelope or other container to allow me to examine each document to determine whether it is precluded from production by application of s 22(1) of the W P Actor by operation of the doctrine of public interest immunity.  Where it is feasible in respect of a particular document, I shall edit or redact it to preserve the confidentiality of the part or parts which it would be inimical to the public interest to disclose or which contain information which is the subject of a protected disclosure or is connected with the investigation of a disclosed matter within the meaning of s 22(1) of the W P Act.

27                  A similar course commends itself in respect of the documents enumerated in Appendix B to these reasons, which comprises Parts 2 and 3 of Schedule 1 to the second respondent’s list of documents.  Most of those documents, if immune from production at all, will, it seems from their description, derive that character from the doctrine of public interest immunity.  In respect of some, particularly those in Part 3, the Court may decline to order production on the ground that it is not necessary in the sense explained at [34]-[38] below.  I shall, accordingly, examine each of the documents listed in Appendix B to determine whether the second respondent should be ordered to produce it in its original, or in some edited or redacted, form.  Those documents ought also, therefore, be delivered to my Associate in the same fashion as the Appendix A documents.

28                  In light of the course which I have just indicated is to be taken, in respect of most of the documents enumerated in Appendix A and Appendix B to these reasons, it is unnecessary to consider the relief claimed by the applicants in paragraph 3 of their motion on notice dated 30 July 2009.

The respondents’ motion

29                  It is convenient now to turn to the relief sought by the respondents in their notice of motion.

30                  The order which is sought at paragraph 1 of that notice is effectively a declaration that the first respondent does not need to conduct further searches of the “G drives” of Victoria Police.  The respondents’ written submissions sought to justify the making of such an order in this way:

The basis for the respondent seeking such an order is that this item is oppressive and unnecessary for that drive to be searched. At paragraph 22 of the FRL, as confirmed by the accompanying affidavit of Stuart McKenzie’s sworn 28 July 2009, the “G drive” is a storage area for electronic files widely used by Victoria Police. The task of pursuing searches of that drive is very problematic and there is unlikely to be anyrelevant documentation in it.

The relevant passages of Mr McKenzie’s affidavit, to which reference is there made, are as follows:

22                 I am informed by Mr Spencer Smith, Leading Senior Constable, and verily believe that:

(a)                Victoria Police staff are also able to store emails and documents on a shared drive (known as the ‘G drive’);

(b)                Data stored on a G drive is usually shared and accessible to a number of authorised users within a work area;

(c)                Searching for data on the G drive is very complex, difficult and time consuming because each individual member of Victoria Police has the potential to have multiple G drives (as a member’s allocated G drive changes upon transfer or secondment to a different area within Victoria Police);

(d)                On average, a member is likely to have had access to at least 5 different G drives;

(e)                G drives are also physically located in various locations throughout the state;

(f)                 Therefore, identifying the location of a G drive for an individual member at any relevant time will require extensive inquiry. As the List of Categories spans a period of approximately five years, these inquiries could take many weeks;

(g)                Past experience in relation to G drive data recovery has demonstrated that there are often no records kept in relation to which G drive a particular member has had access to;

…

(i)         Victoria Police has been advised by IBM, its information technology service provider, that between 2002 and 2009 there have been approximately 4 different computer operating systems used by Victoria Police (including the current operating system). As a consequence, information stored on backup tapes is encoded differently for each operating system;

…

(k)                …in order to restore information from the G drives, Victoria Police would need to purchase computer hardware and software that was consistent with the appropriate operating system that was in place at the relevant time;

…

31                  In deciding whether or not to order production of a particular class of documents or other evidentiary material, the Court is required to have regard, when exercising the discretion conferred by O 15, to the trouble and possible oppression which would be caused to a party required to give production and the detriment to the other side if the documents or evidence of the relevant class are not produced.  As Tamberlin J pointed out in Universal Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2006] FCA 116, at [3];

On a discovery application, the Court has a broad discretion and will balance the costs, time and possible oppression to the producing party against the importance and likely benefits which arise to the requesting party from production of the documents:  Australian Broadcasting Commission v Parish(1981) 41 FLR 292 at 295.  The Court will ensure that in all the circumstances, the litigation is conducted fairly in the interests of both parties, and care must be taken to make sure that there is no excessive or unnecessary discovery: see Index Group of Companies Pty Ltd v Nolan[2002] FCA 608. This Court has made it clear in Practice Note 14 that it will take a restrictive approach to discovery to ensure that excessive and wasteful discovery does not occur.

Practice Note 14 has since been superseded by Practice Note CM 5.  However, notwithstanding that change I regard his Honour’s observations as applying with equal force to the question of whether the first respondent should be compelled to carry out a further search of the Victoria Police “G drives”.

32                  An additional consideration militating in favour of the relief sought in this respect by the first respondent is that the applicants have not so far given any clear indication of what they hope to obtain from the further interrogation of the “G drives”. Courts are traditionally reluctant to encourage, by orders for discovery, “fishing expeditions” in which “a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not”:  Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250, per Owen J, at 254.  See also WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175, at 181-2 and 191. 

33                  As presently advised, I suspect that a similar reluctance would incline this Court not to require the first respondent to conduct further searches of the Victoria Police “G drives”.  However, had the applicants pressed for such further searches, I would have acceded to the first respondent’s request for an order in the terms of paragraph 1 of her notice of motion because I am persuaded the expense and trouble which would be incurred would far outweigh any potential assistance to the applicants’ case which they might derive from further searches of the “G drives”.  Though it may ultimately prove superfluous, I therefore propose to make that order, notwithstanding that it was not pressed.

34                  I turn next to the relief sought by paragraph 2 of the respondents’ notice of motion in relation to item 10 of the applicant’s list of categories of documents to be discovered by the respondents.  Item 10 seeks discovery of the following category of documents;

All documents of

(i)         Steve Bracks;

(ii)        Tim Holding;

(iii)       The Office of the Premier of Victoria and the Office of the Victorian Minister for Police and Emergency Services; and

(iv)       Tim Pallas

In the period 1 October 2006 to 30 November 2006 (inclusive) relating to:

(a)        the 2006 Discussions referred to in paragraph 74 of the SFASOC; or

(b)        the 2006 Agreement referred to in paragraph 76 of the SFASOC.

In his oral submissions, Mr Parry characterised as a “sideshow” the matter to which documents in that category are related.  He contended that an order for production of such documents was not “necessary”, in terms of O 15 r 15.  The written submissions on behalf of the respondents approached the matter in this way;

This item is unnecessary. Drafts and documents recording pre-agreement discussions add nothing to the applicants’ case beyond what the 2006 Agreement might achieve. The relevant allegation implicit in the applicants’ pleadings is that over time the first respondent came to resent Mr Mullett and his activities as a union official and that accordingly her decisions to instigate and later recommence the bullying investigation was at least partly driven by the alleged animosity she held towards Mr Mullett. Part of the relevant factual matrix from which the applicants apparently wish to build their case is that in late 2006 an agreement was made between the ALP and TPA without the involvement of the first respondent. This was the 2006 Agreement. The facts that the 2006 Agreement was made and made without the first respondent’s involvement are admitted by the respondents. Documents recording drafts and/or claims and negotiating positions between the TPA and those in Government do not advance that line any further. Indeed, in the absence of any suggestion that [before] she engaged in the alleged prohibited conduct, the first respondent became aware of these documents or the communications contained in them, then the documents fundamentally lack relevance.

On that basis, it will be recalled, the respondents’ offered in paragraph 2 of their notice of motion to produce, in lieu of documents in the applicant’s Category 10, “the final signed version of the 2006 Agreement”.

35                  In resisting the making of the order sought by paragraph 2 of the respondents’ notice of motion, Mr Borenstein SC, who appeared with Ms F Gordon for the applicants, sought to refine the notion of “necessity” as it is expressed in O 15 r 15.  He referred to UWA v Gray (No 8) [2007] FCA 89, where French J said, at [18];

In Trade Practices Commission v CC (New South Wales) Pty Ltd (1995) 58 FCR 426 Lindgren J said that O 15 r 15 requires that the Court to be satisfied that an order of the kind referred to in that rule is, at the time when the order is made, necessary “in the interests of a fair trial”.  He cited Percy v General Motors-Holden’s Pty Ltd [1975] 1 NSWLR 289 at 292. He also referred to Boyle v Downes [1979] 1 NSWLR 192 dealing with a similarly expressed constraint in the Supreme Court Rules 1970 (NSW) relating to interrogatories.  The criterion adopted in the latter case was whether the order sought was “reasonably necessary for the disposing fairly of the cause or matter”.  Lindgren J said (at 437):

‘The notion of the “interests of a fair trial” and of the “fair disposition of a case” encompasses, in my view, the opening up of a train of inquiry of the kind referred to above which is part of the proper function of discovery.’

His Honour was referring to discovery rather than the production of discovered documents. Nevertheless, O 15 r 15 applies the same criterion to orders for production of documents.  It was so applied by Branson J in Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045 in which her Honour said (at [9]):

‘… it is clear that the power of the Court to order that a discovered document be produced for inspection by another party is a discretionary power (see O 15 r 11).’

And added (at [9]):

‘What is “necessary” within the meaning of O 15 r 15 is that which is reasonably necessary in the interests of a fair trial and of the fair disposition of the case…’

She cited Lindgren J in Trade Practices Commission v CC (New South Wales) Pty Ltd.

36                  In the applicant’s written submissions it was contended that the notion of “necessity” conveyed by O 15 r 15 does not require the applicants to demonstrate that production of the Category 10 documents is necessary to prove some part of their case.  Rather, the concept is designed to ensure that discovery and production does not impose on a litigant any harsher or more oppressive burden than is required to secure that justice is done;  see Harman v Secretary of State for Home Department [1983] 1 AC 280, at 308, which was cited by Spender J in Mackay Sugar Co-Operative Association Ltd v CSR Ltd (1996) 63 FCR 408, at 412.

37                  I do not regard the authorities invoked by Counsel for the respondents as establishing that, in exercising its discretion to order discovery or production of documents, a court is entitled to have regard to matters going beyond the proof or disproof of some issue which the pleadings reveal as remaining in dispute between the parties.

38                  In the present case, I cannot discern from paragraphs 74 to 76 of the Second Further Amended Statement of Claim how knowledge by Ms Nixon of any documents brought into existence by the persons identified as concerned in the negotiation of the 2006 Agreement could assist in proving the allegations there pleaded and particularised, or avail the applicants’ case more generally.  I therefore accede to the respondents’ motion that item 10 of the applicants’ list of categories of documents be amended to read “The final signed version of the 2006 Agreement referred to in paragraph 76 of the Second Further Amended Statement of Claim”.

Conclusion

39                  In light of the reasons explained above in relation to the application of the W P Act and the doctrine of public interest immunity, I shall order, on the applicants’ motion, that the first respondent, by 16 April 2010, deliver to my Associate in a sealed envelope or container a clear copy of each of the documents enumerated in Appendix A to these reasons other than the documents numbered 54 and 74.  There will be a similar order directed to the second respondent in respect of the documents listed in Appendix B to these reasons.  On the respondents’ motion, I shall order that the first respondent is not required to conduct further searches for electronic documents stored on Victoria Police “G drives” and that item 10 of the applicants’ list of categories of documents be deleted and replaced with “The final signed version of the 2006 Agreement referred to in paragraph 76 of the second further amended statement of claim”.  The respondents’ motion will be otherwise refused.

40                  There will be a directions hearing herein on a date to be fixed after the Court has completed its examination of the documents ordered to be produced to it.  There will also be liberty to any party to apply on not less than 48 hours’ notice in writing to the other parties.

Associate:

Dated:         1 April 2010

APPENDIX A

APPENDIX B

Part 2

Part 3