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

FEDERAL COURT OF AUSTRALIA

NT Power Generation Pty Ltd v Power & Water Authority [2000] FCA 51 EVIDENCE – PRIVILEGE – PUBLIC INTEREST IMMUNITY – Cabinet submissions and decisions – balancing interests of justice – relevance of Cabinet materials to issues in proceeding – whether fair trial possible without disclosure of Cabinet documents – whether the documents were significant for the purposes of a fair trial. PRACTICE AND PROCEDURE – interlocutory ruling – whether interests of justice entitled application to reconsider ruling – whether changed circumstances – whether nature or quality of evidence may constitute changed circumstances when pleading issues unchanged – whether ruling regarding public interest immunity should be reconsidered.

NT POWER GENERATION PTY LIMITED (ACN 061 314 921) v POWER AND WATER AUTHORITY and GASCO PTY LIMITED (ACN 009 627 801) D5 OF 1999

MANSFIELD J 2 FEBRUARY 2000 DARWIN

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY D 5 OF 1999

BETWEEN: NT POWER GENERATION PTY LTD

(ACN 061 314 921)

Applicant

AND: POWER AND WATER AUTHORITY

First Respondent

GASCO PTY LTD

(ACN 009 627 801)

Second Respondent

GASCO PTY LTD

(ACN 009 627 801)

Cross Claimant

NT POWER GENERATION PTY LTD

Cross Respondent

JUDGE: MANSFIELD J

DATE: 2 FEBRUARY 2000

PLACE: DARWIN

REASONS FOR DECISION 1 On 18 August 1999, I gave reasons for my decision in part upholding and in part rejecting the respondents' claim that certain documents discovered by them in these proceedings were privileged from production on the ground of public interest immunity. At the time, the documents in question were listed and briefly described in a list running to some 34 pages and listing in excess of 400 documents. Those documents fell into the category of 'Cabinet documents', to use the term used by Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1 at 41 ("Sankey") to encompass the categories of documents described by his Honour earlier in his reasons at 39. 2 I shall use that term in these reasons to refer to the documents which are described in a little more detail in pars 1 and 2 of my earlier reasons. There is nothing to indicate that the documents now in issue are of any different general description. 3 Since that ruling the respondents have discovered many thousands more documents. Included in the further discovered documents are several hundred which fall into the category of Cabinet documents, and in respect of which the respondents maintain a claim for public interest immunity. The list of such documents is now 68 pages long, including the earlier documents. The applicants tell me that there are some 739 additional documents in respect of which the claim for public interest immunity has been made. 4 In addition, two non-parties, TreEnt Pty Ltd and Merrill Lynch International (Aust) Ltd, have produced to the Court, under subpoena, a number of documents. As those two entities apparently brought into existence or held the documents so produced in their capacity as consultants to the Northern Territory Government, I directed that access to those documents in the first place be given to the respondents. This was to determine if there was any claim, on their part, that any of the documents so produced by those entities should be withheld from the applicant due to some claim of privilege. It was only after the respondents had had that opportunity that the balance of the documents were to be made available for inspection by the applicant. A limited number of those documents are also subject to a claim that they should not be made available to the applicant for inspection on the ground of public interest immunity. 5 All of those claims are disputed by the applicant. The applicant, in effect, seeks the Court to reconsider the ruling made on 18 August 1999 in light of the circumstances and events which, it submits, have occurred since that time. 6 Before I proceed to consider the application, it is desirable that I briefly refer to the history of these proceedings, to indicate how these issues have arisen at this relatively late stage in the course of the hearing. 7 The nature of the proceeding is briefly described in pars 18 and 19 of my earlier reasons. I will not repeat it. I add, however, as was apparent from the earlier reasons, that the respondents have indicated that, in respect of certain critical decisions pertaining to these proceedings, the Northern Territory Government, whether through Cabinet or the relevant Minister, was the decision-maker rather than the Chief Executive Officer or the administrative board of the first or second respondents. 8 The hearing commenced in August 1999. That time was fixed when the applicant indicated that the hearing could reasonably be completed in three or so weeks, and at a time when the respondents indicated that they could also be ready for trial. 9 As the trial date neared, the respondents applied for it to be adjourned as the task of discovery was proving much more extensive than they had initially foreseen. They then thought that, with difficulty, their discovery could be completed shortly after the trial commenced. They were in a position where they said they were unable to file and serve their statements of proposed evidence by the commencement of the trial. 10 The applicant, for its part, sought to maintain the hearing date, urging upon the court the urgency of the matter, and the circumstances in which it came to be listed for hearing. I will not refer to those circumstances in these reasons. 11 The applicant, by its counsel, indicated that it wished to proceed with the trial, notwithstanding that the respondents' statements of proposed evidence would not by then have been filed and served, and that the respondents' discovery might not be fully complete. I accept that the applicant then anticipated that the respondents' discovery would be largely completed by that time. 12 The Court determined to proceed with the matter for the period of the hearing then fixed, but upon the basis that it would adjourn the trial in any event for several weeks if the applicant's case was to be closed before that period had expired. The respondents then would have a further significant time to complete their preparation of witness statements, their discovery, and their preparation generally for the case, before the matter further proceeded. 13 The ruling given on 18 August 1999 was thus made at a time when it was understood the respondents had not completed their discovery, and before they had disclosed their proposed witnesses and the terms of their proposed evidence. 14 As the history of the proceeding reveals, and highlighted perhaps by the present application, the applicant's expectation that the respondents would largely complete discovery during the first block of the hearing proved to be far too sanguine. I accept that the respondents, through their counsel, have maintained and expressed caution about when the discovery process would be completed. 15 Many thousands of documents have been discovered since August 1999, and the respondents have given the applicants four supplementary lists of documents (numbered 15 to 19) only during January 2000. There are apparently some documents within those additional supplementary lists which are also to be the subject of a claim for public interest immunity, but they have not yet been separately listed and described. The respondent, I accept, has been endeavouring conscientiously, and as fully as it could, to give its discovery in a timely manner. However, the volume of documents so involved has been immense. 16 The hearing time fixed for October 1999 was taken up with the balance of the applicant's case, which in fact took considerably longer than the applicant had at first estimated, and then with certain evidence of the respondents. The matter was further adjourned with a block of time to complete the hearing commencing on 1 February 2000. 17 At the completion of the last block of hearing, the parties then indicated that there was a further potential issue to be pursued regarding the claim for public interest immunity. That is the issue which is only now raised. It is raised before the respondents' evidence further proceeds. 18 The claim for public interest immunity, still maintained by the respondents, was initially supported by an affidavit of the Chief Executive Officer of the Northern Territory Department of the Chief Minister and the Secretary to Cabinet. In respect of the more recently discovered documents, it is now supported by a further affidavit effectively in the same terms of the Acting Chief Executive Officer of that Department of the Northern Territory Government. It makes the same general claims for public interest immunity as that previously made. 19 As I noted in my earlier reasons, the claim is a class claim. There are no particular documents of which disclosure of the contents, the respondents contend, would be of particular adverse significance to the public interest. The reasons for that claim are set out in par 6 of my earlier reasons for decision. I shall not repeat them. I am satisfied that they still apply. I am also satisfied that the affidavit of the Acting Chief Executive Officer of the Chief Minister's Department of the Northern Territory Government is an appropriate basis upon which to form those conclusions. 20 I will not repeat the general principles relating to determining a claim such as the present. They are discussed in Sankey. In so far as they are particularly relevant to the present matter, in part at least the passages from that decision are referred to in my earlier reasons. In the course of the present submissions, counsel has drawn my attention to certain observations of the High Court in The Commonwealth v Northern Land Council (1992) 176 CLR 604 ("Northern Land Council"). It seems to draw some distinction, at least in terms of degree of significance, between documents which record the actual deliberations of Cabinet on the one hand, and documents which fall into the more generic description of Cabinet documents on the other hand. The majority (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ) said at 614-615: