FEDERAL COURT OF AUSTRALIA

BSX15 v Minister for Immigration and Border Protection [2016] FCA 230

ORDERS

THE COURT NOTES THAT:

The Court notes that the second respondent has on 4 March 2016 produced the Director General’s Security Assessment Determination No 2 dated 28 July 2010 in its entirety to the applicant.

THE COURT ORDERS THAT:

1.    The notice to produce dated 18 November 2015 be set aside insofar as it required the production of the unredacted version of documents numbered 13 and 15-21 enumerated in the affidavit of Zara Oldfield dated 21 October 2015, and the documents referred to in paragraph 5 of the affidavit of Kerri Hartland dated 10 February 2016.

2.    The second respondent is to pay the applicant’s cost in relation to the second respondent’s public interest immunity claim on and from 19 December 2015.

3.    Prior to that date the second respondent and the applicant are to bear their own costs in relation to the second respondent’s public interest immunity claim.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This claim to public interest immunity by the Director General of Security (the Director General) was set down for hearing today, 8 March 2016.

2    By way of notice to produce dated 18 November 2015, the applicant sought production of an unredacted version of the Director General’s Security Assessment Determination No. 2 dated 28 July 2010 (the Determination) made under s 37(4) of the Australian Security Intelligence Organisation Act 1979 (Cth). Until the events to which I next refer, the second respondent, the Director General, resisted production of the redacted parts of the Determination on the ground of public interest immunity.

3    On the morning of Friday 4 March 2016 the solicitors for the Director General notified the solicitors for the applicant that the Director General no longer maintained the claim to public interest immunity in relation to the redacted parts of the Determination. The solicitor for the Director General later that day notified my chambers by email that: “The respondents have produced the Determination to the applicant, and the applicant agrees that the Notice to Produce should otherwise be dismissed, meaning that the substantive dispute has resolved.”

4    The Director General, in the email of 4 March 2016 to which I have referred, sought an order that costs be reserved. In his submissions today, he sought an order that the applicant pay his costs of the claim to public interest immunity. The applicant sought that the Director General pay his costs of the claim to public interest immunity.

The form of order

5    There was debate before me as to the appropriate form of the substantive order disposing of the claim to public interest immunity. In substance the claim to public interest immunity was resolved but that left the question of the notice to produce dated 18 November 2015. So as to interfere as little as possible with whatever the remaining forensic purpose of the notice to produce is or may be, the appropriate form of order is that the notice to produce dated 18 November 2015 be set aside insofar as it required the production of the unredacted version of documents numbered 13 and 15-21 enumerated in the affidavit of Zara Oldfield dated 21 October 2015, and the documents referred to in paragraph 5 of the affidavit of Kerri Hartland dated 10 February 2016. That form of order will resolve the claim to public interest immunity and no more.

Costs

6    I do not consider it appropriate to make an order that costs be reserved since proceedings to rule on a claim to public interest immunity are not the lis itself, but are limited to the purpose of enabling the court to rule on that claim: Young v Quin (1985) 4 FCR 483 per Bowen CJ at 485-486. Thus, ruling on the claim is insufficiently related to the outcome of the substantive proceedings for it to be appropriate that the costs of the claim to public interest immunity be reserved. Another judge of the Court will be hearing the substantive proceedings and those proceedings will not involve the claim to public interest immunity.

7    It may be that the point of the submission to reserve the costs was only to avoid travel and other expenses for the legal representatives of the Director General, but that was solved relatively simply by allowing those legal representatives to appear from Melbourne by video-link. This is what has occurred. Insofar as there remained in the submissions of the Director General an application that costs be reserved, I reject that application for the reasons I have given in [6] above. The judge dealing with the claim for judicial review will not be considering the claim to public interest immunity, which is resolved by the orders I make today. It is therefore appropriate that I deal with costs today and I now turn to that question.

8    As to the course of the claim to public interest immunity I was taken to orders and correspondence dating back to 4 September 2015 when Tracey J ordered that the Director General file and serve any affidavits in support of any public interest immunity claim relating to documents ordered to be discovered. The discovery order made on that day was that the Director General produce all documents relating to his decision to issue an adverse security assessment in relation to the applicant. Subsequently, the claim to public interest immunity covered nine numbered documents, including a folder of documents, and an affidavit dated 21 October 2015. There followed the notice to produce dated 18 November 2015 to which I have referred for “The documents taken into account by the Second Respondent … in deciding to issue the security assessment concerning the Applicant …” I have also taken into account the covering letter to the notice to produce and the further correspondence between the solicitors for the parties dated 20 and 26 November 2015.

9    However, on 18 December 2015, the solicitors for the applicant wrote to the solicitor for the Director General that:

With the exception of the Security Assessment Determination (Determination) our client accepts that each of the documents over which your client has made a public interest immunity claim is a document which satisfies the test in s. 130(1) of the Evidence Act 1995; and is a document which your client ought not be required to produce. It follows that our client accepts that your client ought not be required, in response to the Notice to Produce dated 18 November 2015, to produce any documents or parts of documents over which public interest immunity has been claimed.

10    I see nothing in the correspondence or transcript after that date showing that the applicant changed his position from that stated on 18 December 2015.

11    That position was confirmed by the affidavit of Natalie Wong affirmed 17 February 2016. See [9] of that affidavit.

12    Written submissions were then exchanged. The submissions on behalf of the Director General filed on 22 February 2016. The submissions on behalf of the applicant were filed on 29 February 2016.

13    From those submissions it appeared that the Director General contended that the public interest immunity claim should be determined “in its totality”, that is, by reference to the entirety of the documents the subject of the notice to produce dated 18 November 2015.

14    It should also be noted that the written submissions dated 22 February 2016 on behalf of the Director General advanced a “class” claim, as opposed to a “contents” claim, in respect of all of the documents the subject of the notice to produce.

15    The applicant’s position was restated in the written submissions on behalf of the applicant filed on 29 February 2016. That is, the applicant no longer sought access to documents other than the entire Determination.

16    On 29 February 2016, at my direction, my associate notified the parties, relevantly, that as presently advised and subject to further argument, I proposed only to deal with the claim for public interest immunity in respect of the Determination and proposed otherwise to dismiss the notice to produce dated 18 November 2015.

17    As I have said, on 4 March 2016, the Director General produce the entirety of the Determination to the applicant and the parties agreed to the balance of the notice to produce being set aside at least so far as concerned the public interest immunity claim.

18    In relation to his claim that the applicant pay his costs of the claim to public interest immunity, the Director General submitted that “While the Applicant has sought in correspondence to limit his request for production, the fact that the Notice to Produce remained alive … gave rise to a reasonable apprehension on the Second Respondent’s part that at some point the Applicant would seek access to documents beyond the Determination.” I do not accept this submission. In my view it elides substance with procedure. I can think of no basis on which the Director General should not have proceeded as stated in the 18 December 2015 letter from the applicant’s solicitors which, in effect, conceded all the claims for public interest immunity except for the claim in respect of the redacted parts of the Determination.

19    In my opinion, it is clear that the applicant should have his costs of the Director General’s claim to public interest immunity for the originally redacted parts of the Determination from shortly after the time it became apparent that the applicant sought access only to that Determination, insofar as it was redacted.

20    That time was no later than the day following the letter of 18 December 2015 when the applicant’s position in relation to public interest immunity became clear: see [9] above.

21    The Director General also referred in his submissions to an order sought by the applicant served on 7 March 2016, in contrast to the applicant’s proposed short minutes served on 4 March 2016 which noted that the Director General had produced the unredacted Determination; that the notice to produce dated 18 November 2015 otherwise be set aside; and that the Director General pay the applicant’s costs in relation to the Director General’s public interest immunity claim. However, I have explained the appropriateness of the more limited order, specific to the claim to public interest immunity, at [5] above.

22    Before it became clear that the entire Determination was the only document to which the applicant sought access notwithstanding the claim to public interest immunity, in my view the parties should bear their own costs. The claim was reasonably made and reasonably tested by the applicant up to 18 December 2015.

Conclusion

23    The form of order disposing of the claim to public interest immunity will be as I have set out at [5] above. I do not accede to the submission on behalf of the Director General that costs be reserved, for the reasons I have given at [6]-[7] above. As to costs of the public interest immunity claim, the appropriate order is that the Director General pay the applicant’s costs, as agreed or taxed, on and from 19 December 2015. Before that date, each party should bear their own costs of the proceedings in relation to the claim to public interest immunity.

Associate:

Dated:    9 March 2016