FEDERAL COURT OF AUSTRALIA Commonwealth of Australia v Shenzhen Energy Transport Co Ltd (No 2) [2016] FCA 1607 File number: QUD 178 of 2013 Judge: DOWSETT J Date of judgment: 31 August 2016 Catchwords: PRACTICE AND PROCEDURE – application for discovery – where the applicant seeks to rely on public interest immunity – where it is not possible to conclude that the interests of justice displace the public interest in confidentiality Cases cited: Sankey v Whitlam (1978) 142 CLR 1 Spencer v the Commonwealth (2012) 206 FCR 309 Date of hearing: 31 August 2016 Registry: Queensland Division: General Division National Practice Area: Commercial and Corporations Sub-area: Economic Regulator, Competition and Access Category: Catchwords Number of paragraphs: 6 Counsel for the Applicant: Ms C Pierce Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr D Keane Solicitor for the Respondent: Thynne & Macartney REASONS FOR JUDGMENT QUD 178 of 2013 BETWEEN: COMMONWEALTH OF AUSTRALIA Applicant AND: SHENZHEN ENERGY TRANSPORT CO LTD Respondent DOWSETT J: 1 In these proceedings, an issue which the respondent seeks to establish against the applicant is that the latter failed to take timely remedial action in connection with damage, or potential damage to the Great Barrier Reef, for which damage, the respondent might otherwise be liable. The respondent proposes to argue that such failure has led to likely increased cost in future remedial work. It seeks to establish that such delay was motivated by a desire on the part of the applicant to avoid expenditure on remedial work until the question of the respondent's liability to pay damages to the applicant had been resolved. Apparently, the respondent will argue that it was unreasonable for the applicant so to delay. 2 There is at least some evidence in the discovered material that the applicant, in the guise of the Great Barrier Reef Marine Park Authority ("GBRMPA"), gave consideration to the possible sources of funds in the event that these proceedings are unsuccessful as against the respondent. It at least identified the possibility of leaving the reef in its "unremediated" state. It seems that GBRMPA, in its own right as opposed to that of the Commonwealth, had insufficient funds to remedy the damage caused by major shipping incidents. In a document headed "Attachment A – Shen Neng Future Action/Options", all of the options appear to have depended upon the respondent's response to any claim against it. 3 In answer to a request for disclosure concerning the issue of remediation, numerous documents, each described as "a roadmap for the Great Barrier Reef Marine Park Authority", were disclosed. The evidence indicates that such documents were produced for presentation to Cabinet, although nobody has been able to say whether they actually were sent to Cabinet. The respondent seeks access to those documents. The applicant seeks to rely on public interest immunity in respect of them. The respondent submits that in this case, the circumstances dictate that the public interest in the confidentiality of such Cabinet documents be subordinated to the interests of justice. 4 The approach to be taken by the courts to such a problem was recently outlined by the Full Court in Spencer v The Commonwealth (2012) 206 FCR 309, especially at pp 319-320 where, in discussing the decisions of the High Court in Sankey v Whitlam (1978) 142 CLR 1, the Full Court said: The joint majority judgment makes it clear (at 618-619) that documents recording the actual deliberations of Cabinet, as distinct from other Cabinet documents, have "a pre-eminent claim to confidentiality". That means that the weighing process will not often produce the result that the interests of justice require disclosure. "Indeed", their Honours said, "for our part we doubt whether the disclosure of the records of Cabinet deliberations upon matters which remain current or controversial would ever be warranted in civil proceedings." While this case is not one involving records of that kind, the matter to be emphasised is that, both in the case of documents recording the deliberations of Cabinet and in the case of other Cabinet documents, the question for the court is "whether the relevance of the material to the proceedings in which disclosure is sought is sufficient ... to justify disclosure". In a case where the court has to weigh the competing public interests, it is required, in doing so, to give weight to the assertion of a responsible representative of government that there is a public interest which would be placed in jeopardy by the production of the document. In Sankey v Whitlam (at 44) Gibbs ACJ said that the court is "required to give proper respect to the assertion by the Minister or departmental head that production would be contrary to the public interest", and he reiterated the point, using the expression "[f]ull respect", at 46. In the same case, Stephen J quoted (at 59-60) a statement by Lord Pearson to similar effect, and Mason J said (at 96) that the court "will give weight to the Minister's opinion that the documents should not be produced". Since the public interest on which the immunity is based is concerned with the protection of the inner workings of government, this proposition is inevitable. For the same reason, Gibbs ACJ in Sankey v Whitlam drew attention (at 43) to the need, in cases in which the government is not a party, to provide it a proper opportunity to intervene before any order for disclosure is made. Gibbs ACJ continued, after making the point which has just been mentioned: Moreover no such order should be enforced until the government concerned has had an opportunity to appeal against it, or test its correctness by some other process, if it wishes to do so (cf, Conway v Rimmer [1968] AC, at p953). In New South Wales v Ryan the Full Court allowed an appeal on the basis that the judge at first instance had erred in not following the principle explained in Northern Land Council that (at 252): it is not enough to weigh (and find wanting) the importance to the government of disclosure of the particular facts which would be revealed by production of the cabinet material in question. Only a sufficient demand of justice can outweigh the protection to which Cabinet documents are entitled in virtue of their nature, irrespective of those facts. Furthermore, the authorities also require weight to be given to the government's claim that disclosure of the document would be harmful, and it is simply not correct that disclosure of recommendations couched in broad terms, or which are implicit rather than express, could not justify this claim. This summary, which accurately reflects the reasoning in Lanyon, Sankey v Whitlam and Northern Land Council, discloses that the approach advocated by the applicant is fundamentally inconsistent with authority. True it is that documents recording deliberations of Cabinet have "a pre-eminent claim to confidentiality". But other documents including "papers brought into existence for the purpose of preparing a submission to Cabinet" and "documents and communications passing between a Minister and the head of his department relating to Cabinet proceedings and material prepared for Cabinet" are recognised classes prima facie entitled to protection on the grounds of public interest immunity. And as New South Wales v Ryan makes clear, the question in respect of both classes is "whether the relevance of the material to the proceedings in which disclosure is sought is sufficient ... to justify disclosure". It follows that if there is cogent evidence of the grounds for the making of the claim for immunity of the class of documents, a matter to be assessed giving due "weight to the assertion of a responsible representative of government that there is a public interest which would be placed in jeopardy by the production of the document" and no apparent basis for concluding a "sufficient demand of justice" for disclosure of the document having regard to its importance to the resolution of the proceedings, there will be no warrant for inspection of the documents by the judge resolving the claim; the prima facie position of protection from disclosure will prevail. In such a case it is only if there is a sufficient basis for concluding that documents within these recognised classes are of "such significance that the interests of justice call for" them to be produced (New South Wales v Ryan at 250) that production might be required albeit recognising that, first, it will be difficult if not impossible for the requisite level of significance to be achieved in respect of documents recording the deliberations of Cabinet on any current topic or topic which remains controversial and, second, if the requisite level of significance of the documents to the case is demonstrated having regard to the "degree of protection against disclosure which is called for by the nature of [the] class", it will then be appropriate for the judge to inspect the documents, not for the purpose the applicant proposed (simply to test the strength of the claim for immunity) but rather to test whether the apparent significance of the documents to the proceedings truly justifies disclosure having regard to the strength of the claim for immunity. 5 In the present case, the public interest in the preservation of confidentiality may be assumed, having regard to the evidence. The real question is as to the extent of the interests of justice, having particular regard to the respondent's position. Two points seem to me to be of primary significance. First, the respondent already has the benefit of the documents in which the GBRMPA considered its approach to the remediation question in the context of the current litigation. The funding position is clearly identified. We now know that nothing has been done. The trial starts on Monday. In the absence of other evidence, there would be no difficulty in concluding that the delay was prompted by a desire to await the outcome of these proceedings. Even if there were evidence of other possible motivations, such as difficulties in developing a remedial plan, it is difficult to believe that the financial difficulty was of no significance in connection with the delay. The second point is that the respondent has no knowledge of the content of the roadmap documents. I can see no reason to expect that documents produced for Cabinet would be more, rather than less detailed than those generated within the GBRMPA for its own internal purposes, and prior to submitting any proposal to Cabinet. That proposition assumes that in its own discovery, the applicant has distinguished between the two aspects, a distinction which, I would have thought, should have been drawn. 6 In the circumstances I do not consider that the respondent requires access to the documents in question in order to advance its case. In those circumstances it is not possible to conclude that the interests of justice displace the public interest in confidentiality. The application will be refused. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 31 July 2017