Supreme Court New South Wales Medium Neutral Citation: Henry & Ors v Hazzard (No 2) [2021] NSWSC 1235 Hearing dates: 29 September 2021 Date of orders: 29 September 2021 Decision date: 29 September 2021 Jurisdiction: Common Law Before: Cavanagh J Decision: The defendant's claim of public interest immunity is upheld. Catchwords: CIVIL PROCEDURE – Notices to produce – Before hearing – Objection to production of material – Public interest immunity Legislation Cited: Evidence Act 1995 (NSW) Public Health Act 2010 (NSW) Cases Cited: Commonwealth of Australia v Northern Land Council and Another (1993) 176 CLR 604; [1993] HCA 24 Eastman v The Queen (1997) 76 FCR 9 Ku-ring-gai Council v Garry West as delegate of the Acting Director-General, Office of Local Government (2017) 95 NSWLR 1; [2017] NSWCA 54 State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 Category: Procedural rulings Parties: Natasha Henry (First Plaintiff) Selina Crowe (Second Plaintiff) Julie Ramos (Third Plaintiff) Hohepa Waapu (Fourth Plaintiff) Kamran Khan (Fifth Plaintiff) Sandi Greiner (Sixth Plaintiff) Bradley Hazzard (Defendant) Representation: Counsel: J Harkess with V Plain (Plaintiffs) R Bhalla (Defendant) Solicitors: G & B Lawyers (Plaintiffs) Crown Solicitor's Office (NSW) (Defendant) File Number(s): 2021/252587 Publication restriction: None REVISED EX TEMPORE Judgment 1. By way of an Amended Summons filed on 24 September 2021 the plaintiffs, who are six individuals, seek to challenge public health orders made in the context of the current pandemic. 2. The defendant is the NSW Minister for Health. 3. The plaintiffs assert that the particular public health orders, being specified as those relating to the requirement that persons who wish to be employed in certain areas or wish to attend certain premises must be fully vaccinated, are unlawful and invalid. 4. In the Amended Summons the plaintiffs set out as their grounds for their challenge to these laws being: 1. that the public health orders are ultra vires, that is that the defendant had no power under s 7 of the Public Health Act 2010 (NSW) ("the Act") to make the orders; 2. that in making the public health orders the defendant exercised a power under s 7 of the Act, for purposes other than a purpose for which the power was conferred; 3. that in making the public health orders the defendant failed to give proper, genuine and realistic consideration to a number of relevant considerations which are set out in the Amended Summons; 4. that in making the public health orders the defendant identified wrong issues, asked wrong questions and otherwise took into account irrelevant matters, again which are set out in the Amended Summons; 5. that in making the public health orders the defendant breached the requirements of natural justice; and 6. finally, that the public health orders are unreasonable and not proportionate to the outcomes that the exercise of power under s 7 of the Act is intended to achieve. 1. The matter comes before me today only for one purpose, that is for the purpose of determining a dispute between the parties arising under a Notice to Produce filed and served by the plaintiffs on 23 September 2021. 2. In response to that Notice to Produce, the defendant provided a schedule of documents which were in his possession which would fall within the ambit of the Notice to Produce. 3. The defendant has produced documents 1 to 11. The defendant declined to produce certain other documents which are identified in the defendant's schedule as documents 12, 13 and 14. 4. Document 12 is an e-mail chain which the defendant claimed was subject to legal professional privilege. That issue has already been determined or agreed. 5. Documents 13 and 14 are dated 19 August 2021 and are identified as being: 1. Document 13 - presentation to the Crisis Policy Committee of Cabinet; and 2. Document 14 - decision of the Crisis Policy Committee of Cabinet. 1. The defendant seeks to withhold production of those documents for inspection by the plaintiffs on the grounds of public interest immunity. 2. In this application Dr Harkess appears with Ms Plain for the plaintiffs and Mr Bhalla appears for the defendant. 3. The defendant relies on the affidavit of Kathryn Boyd dated 22 September 2021. Ms Boyd is the Deputy Secretary, General Counsel at the New South Wales Department of Premier and Cabinet. 4. Ms Boyd refers to the Cabinet processes and offers her view as to the harm to the public interest that would arise should the Cabinet documents be disclosed at this time. 5. The plaintiffs rely on the pleadings and the plaintiffs' extensive written submissions for the purposes of the final hearing. 6. Both parties provided helpful written submissions on the issue before the Court today. 7. Importantly, both parties agree on the principles which should be applied in determining the defendant's claim to withhold disclosure of documents on the grounds of public interest immunity. 8. Further, the plaintiffs accept that the relevant documents would fall within the general description of "Cabinet documents". It is thus not necessary that I give any further description of the documents to which the plaintiffs seek access. Public Interest Immunity 1. Public interest immunity is a common law doctrine which permits the withholding of certain confidential information which might otherwise be relevant to the proceedings on the grounds that the public interest in its disclosure is outweighed by the greater public interest in the documents remaining confidential. 2. In general terms, public interest immunity has been considered in the context of either particular documents which are subject to the immunity because of their contents or documents which fall within a class of documents being documents which are generally recognised as subject to public interest immunity. 3. There is no dispute between the parties that Cabinet documents would generally fall within a class of documents which would be subject to public interest immunity. 4. There is no rule or principle which provides that all Cabinet documents must always be subject to public interest immunity. Each case must turn on its own facts having regard to the circumstances of the case. 5. Having said that, the circumstances in which a Court would order that Cabinet documents be produced to a party for the purposes of inspection in litigation has been the subject of considerable judicial comment. 6. I should say at this point that the common law principles of public interest immunity have now found statutory expression in s 130 Evidence Act 1995 (NSW). See, for example, Eastman v The Queen [1] and Ku-ring-gai Council v Garry West as delegate of the Acting Director-General, Office of Local Government. [2] 7. However, both parties accept that whether the claim is made pursuant to s 130 Evidence Act or the common law, the principles and procedure are the same. The Court must balance the public interest in withholding the disclosure of information or the production of documents against the public interest in ensuring the proper administration of justice and ensuring that the parties have access to relevant information. See s 130(1) Evidence Act. 8. Indeed, s 130(5) Evidence Act sets out factors which should be considered (in a non-exhaustive way). 9. In the end, the task in determining the outcome of this matter is, as submitted on behalf of the defendant, a three-stage process. 10. That is, I must firstly determine whether the evidence sought to be obtained is material in the sense that there is a legitimate forensic purpose. 11. Secondly, I must consider whether there is a sound basis for the claim of immunity. 12. Thirdly, I must balance the public's interest in maintaining confidentiality of the Cabinet documents with the public's interest in the proper administration of justice. 13. Having said that, the focus of the argument between the parties was really on two issues, being whether there was any legitimate forensic purpose in the plaintiffs obtaining the documents and then the balancing exercise. 14. In Commonwealth of Australia v Northern Land Council and Another, [3] the Court (per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ) observed that: "[I]t is in the public interest that the deliberations of Cabinet should remain confidential in order that the members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be made." 1. The Court observed that collective responsibility may not survive in practical terms if Cabinet deliberations were not kept confidential. 2. I do not apprehend the plaintiffs to be submitting that there is not a public interest in ensuring that Cabinet documents are kept confidential but, rather that, on the balancing exercise in this matter the circumstances are exceptional and the balance favours disclosure. 3. Again, in Northern Land Council at 618 the Court observed: "In the case of documents recording the actual deliberations of Cabinet, only considerations which are indeed exceptional would be sufficient to overcome the public interest in their immunity from disclosure, they being documents with a pre-eminent claim to confidentiality. The process of determining whether an order for disclosure of documents in that class should be made remains one of weighing the public interest in the maintenance of confidentiality against the public interest in the due administration of justice, but the degree of protection against disclosure which is called for by the nature of that class will dictate the paramountcy of the claim for immunity in all but quite exceptional situations. Indeed, 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. The public interest in avoiding serious damage to the proper working of government at the highest level must prevail over the interests of a litigant seeking to vindicate private rights. In criminal proceedings the position may be different." 1. In State of New South Wales v Public Transport Ticketing Corporation, [4] Allsop P observed that both the common law and s 130 Evidence Act require two broad stages of analysis being, firstly, the assessment of the character of the information of document and a weighing or balancing exercise. 2. His Honour observed that a number of propositions can be taken from Northern Land Council including that: 1. it is in the public's interest that the deliberations of Cabinet including decisions made by Cabinet should remain confidential in support of the collective responsibility of Cabinet government; 2. an important consideration is the protection of the deliberations leading to the formulation of State policy although this proposition should not be taken as meaning that only the formulation of policy is to be protected; and 3. the division of claims into class and contents claims is rough but acceptable to differentiate types of documents, the disclosure of which would injure the public interest irrespective of contents and those which ought not to be disclosed of their contents. 1. Cabinet documents fall within the former class, that is the class claim rather than the contents claim but, as his Honour observed, their immunity is not absolute. The Defendant's contentions 1. Put simply, the defendant maintains that the documents are of a type which ordinarily may be withheld based on public interest immunity and that there is nothing exceptional in the circumstances of this case that would warrant a departure from that approach. 2. The defendant submits that in reality this is a case by a group of individuals seeking to challenge a law of the State in a conventional way. 3. It is, the defendant submits, a fairly standard administrative law case with the primary issue being the proper construction of the legislation, in this case being s 7 of the Act. 4. Further, the defendant submits that the plaintiffs have not identified the forensic purpose for which the documents are sought. Indeed, the defendant submits that the plaintiffs have not specified which ground of the challenge the documents might relate. 5. The defendant also submits that if the documents are required to be disclosed at this time, then the Cabinet could have no confidence going forward in dealing with the issues which are currently confronting our society and that other documents which would come into existence as a result of Cabinet discussions would remain confidential. 6. This is the sort of harm to which the High Court referred in Northern Land Council. 7. Finally, the defendant submits that not only have the plaintiffs not demonstrated any legitimate forensic purpose but the documents are simply irrelevant. The Plaintiffs' contentions 1. The plaintiffs take a different approach. 2. The plaintiffs submit that the circumstances giving rise to this case are, indeed, exceptional. 3. The plaintiffs direct the Court's attention to the submissions already filed by the plaintiffs in support of the Amended Summons. 4. The plaintiffs say that never before has such a public health order been made in Australia; that the orders should be considered as imposing mandatory vaccination on the citizens of the State and that the public has a significant interest in this case and the outcome of the case and, in particular, has a genuine interest in the deliberations of the Cabinet and content of the documents which are sought by the plaintiffs. 5. Further, to quote Dr Harkess: "The plaintiffs want to ensure that the Court has all available evidence on which it could be informed in making a proper decision." 1. The plaintiffs submit that the Court is engaging in an inquiry in respect of these orders and the Court should have before it all appropriate evidence. 2. The plaintiffs submit that at this stage the Court does not know what was before the Minister and the absence of such information precludes or hinders the Court in effectively performing its function. 3. In paragraph 7 of the plaintiffs' written submissions, the plaintiffs submit: "The available evidence suggests that [the defendant] did not take into account any countervailing considerations at all. In each Public Health Order, the Minister has only specified grounds that favoured the exercise of the discretion." 1. All of the evidence which will be relied upon by the parties in the final hearing has been served. I understand that the submission to which I just referred is based on the plaintiffs' consideration of all of the evidence. The plaintiffs say that on the evidence the defendant did not take into account any countervailing considerations. 2. It is not necessary for me, in this judgment, to detail what countervailing considerations there may be but Dr Harkess says that there are many which the defendant did not take into account. 3. I should emphasise that the plaintiffs' written and oral submissions were more extensive than I have just summarised. Determination 1. The documents the subject of the claim for public interest immunity could not be relevant to the grounds which give rise to what I will call the statutory construction issue. 2. If, as the defendant submits, this was just a case about statutory construction then it is clear that the documents could have no legitimate forensic purpose. 3. However, without in any way commenting on the merits of any of the grounds raised by the plaintiffs, it is clear from the Amended Summons that the case involves more than merely a matter of statutory construction. 4. On the plaintiffs' case the matters considered by the defendant have relevance. On the plaintiffs' case the defendant should have considered a number of countervailing factors rather than just positive factors. Whether he did or did not is, of course, a matter for the hearing and nothing I say, again, can be taken as any indication of the strengths or weaknesses in the plaintiffs' arguments. 5. It seems to me that at least potentially the documents could have some legitimate forensic purpose. 6. However, having regard to paragraph 7 of the plaintiffs' written submissions it is not clear to me how access to the documents will necessarily assist the plaintiffs in succeeding in the case. That is because the plaintiffs submit that on the plaintiffs' case the available evidence suggests that the Minister did not take account of countervailing considerations. 7. As submitted on behalf of the defendant, at least on one view, obtaining the documents will only provide evidence which might hinder rather than assist the plaintiffs. Again, I form no view about what the documents might show and do not suggest they would or would not assist the plaintiffs' case but there is at least merit in the submission of the defendant that it is difficult to see how they could be critical to the outcome of the plaintiffs' case based on the submissions made by the plaintiffs. It is perhaps not necessary that I say anything further about that point at this time. 8. In my view the critical factor in determining the outcome is the balancing exercise to which I have referred. 9. There can be no doubt that there is a public interest in maintaining the confidentiality of Cabinet documents. The question which arises is whether the circumstances in this matter are so exceptional that on a proper balancing between the maintenance of confidentiality and the public's interest in the proper administration of justice, an order should be made permitting the plaintiffs or their legal representatives to inspect the documents. 10. In this regard Dr Harkess emphasised that the public had a great interest in the outcome of the case. 11. I took his submissions to be that at least on the plaintiffs' case the circumstances currently existing in our society and the effect of the public health orders which the plaintiffs seek to challenge are such that the public has a great interest in understanding the basis of the defendant's decision and a great interest in the outcome of this case and, indeed, the proper and efficient conduct of the proceedings. 12. Indeed, in paragraph 17 of the plaintiffs' submissions the plaintiffs refer to the balancing exercise under s 130 Evidence Act and submit that: "(a) The public interest demands that we are now provided with a complete picture of the deliberation process that has led to the unprecedented decision that has had such a drastic impact on the lives of the Plaintiffs and the thousands of others in New South Wales...It is clear there is a significant public interest in the subject matter of this case... (b) The evidence contained in the documents would actually be beneficial to the public interest because it will permit the public to properly understand how the Minister was able to so resolutely come to the conclusion that it was necessary for the unvaccinated… to submit themselves to compulsory vaccination... (c) There is no case in the history of Australia like this... (d) This Court does not have to accept the sanitised public narrative that this government has consistently chosen to publish... (e) If the discretionary power [of] the Minister is going to be used to oppress the basis human rights of the unvaccinated, this Court must know why." 1. Again, it is not my function to comment on the merits, correctness or basis of those submissions. I highlight them because they are the matters which the plaintiffs submit should influence the Court in the balancing exercise. 2. However, in my view the plaintiffs' approach to this question is misplaced or misconceived. It is clear from all of the cases, including Northern Land Council, that the balancing exercise involves weighing the public interest in maintaining confidentiality in the Cabinet process and documents and the competing interest in the proper administration of justice which may be impaired if a party does not have access to relevant or otherwise admissible evidence. See Northern Land Council at 616. 3. The plaintiffs seem to rather approach this argument on the basis that the issue is the competing interest between the public's right to know and interest in this case and the confidentiality of the documents. However, in determining whether the documents should be disclosed I am not balancing the interest in maintaining Cabinet confidentiality as against the public interest in knowing about the process or basis of the Cabinet decision and making of the public health orders. 4. No doubt circumstances existing in our society at the present time might be viewed as exceptional. 5. However, in my view the plaintiffs have not identified why in the circumstances in this case the public's interest in the proper administration of justice would outweigh the public interest in maintaining confidentiality of Cabinet documents. 6. Indeed, having regard to what was said by the High Court in Northern Land Council as to the process which should be adopted if I found exceptional circumstances, the plaintiffs have not demonstrated that the documents would be crucial to the proper determination of the proceedings. They might, on a prima facie basis, have some relevance, as I have already suggested, but the plaintiffs have not demonstrated why the proper administration of justice in this case will be so impacted upon or affected by the maintenance of the public interest immunity. 7. The plaintiffs' arguments are really based on the proposition that this is a case in which the public has a great interest and wants to know certain matters about the decision-making process. That is not the correct test. 8. I am not satisfied that the circumstances existing in this case are exceptional, in the sense that the public interest in the proper administration of justice outweighs the public interest in maintaining confidentiality of Cabinet documents. In the circumstances, the defendant is entitled to maintain his claim for public interest immunity in respect of the documents. ********** Endnotes 1. (1997) 76 FCR 9 at 63 (von Doussa, O'Loughlin and Cooper JJ). 2. (2017) 95 NSWLR 1; [2017] NSWCA 54. 3. (1993) 176 CLR 604 at 615; [1993] HCA 24. 4. [2011] NSWCA 60 at [42]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2021