FEDERAL COURT OF AUSTRALIA Johnson Tiles v State Electricity Commission of Victoria [2000] FCA 1510 COURTS – practice and procedure – public interest immunity claim by the State of Victoria in respect of discovered documents – State of Victoria also a litigant – whether conflict of interest between State as a litigant and State as the guardian of the public interest – whether an order should be made for separate representation of the State on public interest immunity issues Federal Court of Australia Act 1976 (Cth) Pt IVA Hinchcliffe v Carroll [1969] VR 164 - applied Tindle v Ansett Transport Industries (Operations) Pty Ltd (1990) 21 NSWLR 492 – cited The Commonwealth of Australia v Northern Land Council (1993) 176 CLR 604 - cited Regina v Chief Constable of West Midlands Police, Ex parte Wiley [1995] 1 AC 274 - considered Haj-Ismail v Minister for Immigration and Ethnic Affairs (1981) 56 FLR 67 - cited Adam P. Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 - cited JOHNSON TILES PTY LTD AND OTHERS v STATE ELECTRICITY COMMISSION OF VICTORIA VG 519 of 1998 JUDGE: MERKEL J DATE: 3 NOVEMBER 2000 PLACE: MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 519 OF 1998 BETWEEN: JOHNSON TILES PTY LTD AND OTHERS APPLICANTS ESSO AUSTRALIA LTD AND ANOTHER RESPONDENTS/CROSS-CLAIMANTS AND: STATE ELECTRICITY COMMISSION OF VICTORIA AND OTHERS CROSS RESPONDENTS/CROSS-CLAIMANTS BHP PETROLEUM (BASS STRAIT) PTY LTD CROSS-RESPONDENT JUDGE: MERKEL J DATE: 3 NOVEMBER 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicants commenced a representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth) against the respondents ("Esso") claiming damages for loss alleged to have been suffered by group members as a result of an explosion and fire that occurred at the Longford Gas Plant in Victoria on 25 September 1998. 2 Esso commenced proceedings, by way of cross-claim, for contribution in respect of any damages for which Esso may be liable to pay. The parties against whom the cross-claims have been brought include the State of Victoria ("the State") and a number of agencies of the State. The State and its agencies are being represented in the proceedings by Freehills, solicitors, and by senior and junior counsel engaged by Freehills. 3 The State has discovered, but claimed public interest immunity in respect of, certain Cabinet documents, Minutes of Cabinet Committee Meetings and documents brought into existence for the purpose of preparing submissions to Cabinet relating to issues arising out of the Longford Gas Plant incident. The ground upon which public interest immunity is claimed is that the documents are, or contain a record of, communications or documents: "(1) submitted to the Cabinet or a Cabinet sub-committee of the State of Victoria for the purpose of assisting in the deliberations of the Cabinet or a Cabinet sub-committee; and/or (2) record or evidence the deliberations of the Cabinet or a Cabinet sub-committee; and which it would be injurious to the public interest to disclose." 4 The State has moved the Court for orders that it be separately represented by solicitors and counsel in respect of the State's public interest immunity claim. The Solicitor General, appearing for the State, submitted that there is a need for separate representation due to a potential conflict of interest. The potential conflict of interest is said to arise as a result of the State having an interest in the proceeding as a litigant and also an obligation to maintain, in the public interest, the confidentiality of Cabinet, and other related, documents that have been discovered by the State. 5 Esso opposed the State's motion on the ground that there is no evidence of any actual conflict of interest and that it is unnecessary and unfair for the State to be separately represented by different solicitors and counsel in the one proceeding. At the conclusion of the hearing on 29 September 2000, I made the orders sought by the State stating that I will deliver my reasons for doing so at a later date. 6 The Court has a broad discretion in respect of matters of practice and procedure to ensure that the interests of justice are met in any particular case. In Hinchcliffe v Carroll [1969] VR 164 the drivers of two vehicles, who were severely injured in a collision involving the two vehicles, were represented by the same compulsory third-party insurer in proceedings in which each driver was suing the other for damages. In order to avoid the conflict arising as a result of the conflicting roles as plaintiff and defendant in respect of the same accident, on the application of one of the drivers, Newton J granted leave to the driver to be represented by separate counsel and solicitors in his capacity as plaintiff and in his capacity as defendant. In granting separate representation Newton J observed (at 166): "I know of no rule of law which prevents this course from being allowed in a case where the interests of justice so demand, although of course in the vast majority of cases as a matter of practice and procedure each party at a trial is allowed only one set of representation: compare Swann's Case, supra, at (V.L.R.) pp. 755 and 761; Smith's Case; supra, at p. 82, and Lewis's Case, supra, at (Q.B.) pp. 619-24. But 'although…a Court cannot conduct its business without a code of procedure,…the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what would cause injustice in the particular case': per Lord Collins, M.R., in Re Coles and Ravenshear, [1907] 1 K.B. 1, at p.4." 7 See also Tindle v Ansett Transport Industries (Operations) Pty Ltd (1990) 21 NSWLR 492 at 498-499. 8 Esso does not dispute the Court's power to order separate representation but contends that there is no injustice in the present solicitors and counsel continuing to represent the State in respect of the public interest immunity claims which they have made on its behalf. In particular, Esso contends that public interest immunity is not capable of being waived and that the duty of solicitors and counsel acting for the State is to claim public interest immunity whenever such a claim is appropriate. Accordingly, so it is said, no conflict has yet arisen and it is unlikely that any conflict will arise. 9 The core issue in relation to public interest immunity is the determination of whether the public interest against disclosure outweighs the requirements of the administration of justice in disclosure see: The Commonwealth of Australia v Northern Land Council (1993) 176 CLR 604 at 616-617. As was observed by Lord Woolf in Regina v Chief Constable of West Midlands Police, Ex parte Wiley [1995] 1 AC 274 at 298 it is more accurate to describe the conflict as being between two different aspects of the public interest than to talk of those two factors as being conflicting public interests. Accordingly, his Lordship observed (at 298): "If it is decided that the aspect of the public interest which reflects the requirements of the administration of justice outweighs the aspect of the interest which is against disclosure, then it is the public interest which requires disclosure." 10 The issue of conflict is a little more complex than Esso was prepared to concede. When the two different aspects of the public interest referred to by Lord Woolf are considered it is clear that there is a continuing potential for the State, in its capacity as a litigant, to have a different interest in disclosure and a different view of its significance to the administration of justice in the present case than that that which may be held by the State in its capacity as guardian of the public interest. For example, the State and its agencies in their capacity as litigants may wish to argue that it is in the interest of the administration of justice that certain documents be disclosed, while the State in its capacity as guardian of the public interest may wish to argue against disclosure in the public interest. 11 In these circumstances I am satisfied that there inheres in the different roles of the State as litigant and as guardian of the public interest a potential conflict between interest and duty. It is not always necessary for there to be an actual conflict of interest of the kind that led the Court in Hinchcliffe to make orders for separate representation. Separate representation can be appropriate in the interests of justice where there is a real potential for conflict between interest and duty. 12 Separate representation is in the interests of justice in the present case as it will enable the State to act in the public interest without regard to any interest the State might have as a litigant thereby removing the potential for conflict. It is also appropriate that the State be represented by the Victorian Government Solicitor, who proposed to brief the Solicitor-General, to advise upon and argue the public interest immunity issues: cf Haj-Ismail v Minister for Immigration and Ethnic Affairs (1981) 56 FLR 67 at 80. 13 Esso also contended it would be unfair for it to be met with different representatives acting for the State on the same issue. However, any unfairness is met by the grant of leave to the State on the basis that it have only one set of representatives acting for it on public interest immunity issues. The other issue of unfairness was said to relate to costs. I doubt that separate representation will result in any additional costs burden being imposed on Esso but, if there is such a burden, the Court can make costs orders to compensate for any additional costs. 14 For the above reasons I determined that it is appropriate that orders be made enabling the State to be separately represented in this proceeding by the Victorian Government Solicitor with respect to any claim for public interest immunity made over any documents discovered by the State or its agencies in the proceeding. 15 The separate representation remains subject to the supervision of the Court so that, in the unlikely event it causes any injustice or unfairness to Esso or any other party, it is able to be reviewed to avoid injustice: see Adam P. Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 at 177-178. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 3 November 2000 Counsel for the State of Victoria: The Solicitor General, Mr D Graham QC Solicitor for the State of Victoria: Mr J Butler, Victorian Government Solicitor Counsel for the State of Victoria and other State Entities as Cross Respondents: Mr G Nettle QC and Mr J Beach QC with Mr S Anderson Solicitor for the State of Victoria and other State Entities as Cross Respondents: Freehills Counsel for Esso: Mr DMB Derham QC with Mr PJ Booth Solicitor for Esso: Middletons Moore and Bevins Date of Hearing: 29 September 2000 Date of Judgment: 3 November 2000