Reported Decision : (2002) 24 NSWCCR 87 Compensation Court of New South Wales CITATION : Wallschutzky v Department of Education [2002] NSWCC 52 Janet Wallschutzky PARTIES : v Department of Education MATTER NUMBER(S) : 749 of 2002 JUDGMENT OF: Johns J at 1 :- Evidence Documentary Evidence Subpoenaed report relevant to Applicant's case Application for access to report CATCHWORDS: Competing claims Public interest in proper administration of justice Public interest in preserving confidentiality Evidence Act 1995 s 130 Proper considerations in exercise of court's discretion Evidence Act 1995, s 130 LEGISLATION CITED: Freedom of Information Act 1989, s 10 Protected Diclosures Act 1994 Workers Compensation Act 1987, s 11A Air Canada v Secretary of State for Trade (No. 2) [1983] 2 AC 394; Burmah Oil Co Ltd v Bank of England [1980] AC 1090; CASES CITED: Commonwealth v Northern Land Council (1993) 176 CLR 604; Conway v Rimmer [1968] 1 All ER 874; Sankey v Whitlam (1978) 142 CLR 1 DATES OF HEARING: 1 August 2002 DATE OF JUDGMENT: 08/09/2002 FOR APPLICANT: Mr M G Cummings instructed by Whitelaw McDonald LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr S L C Flett instructed by Rankin Nathan JUDGMENT: 1. The Applicant in these proceedings seeks to gain access to a report of the Audit Directorate pursuant to the issue of a subpoena upon the Respondent. The Respondent seeks to restrain the Applicant from gaining access to this report on the grounds that it is an exempt document pursuant to the provisions of the Freedom of Information Act 1989, that it is contrary to the object of the Protected Disclosures Act 1994 and finally that the public interest in preserving secrecy or confidentiality in relation to the document outweighs the public interest in admitting into evidence information or documents that relate to matters of state. 2. The Freedom of Information Act by virtue of s10(1) & (2) specifically excludes judicial functions of courts and tribunal from its provisions. 3. The Respondent relies in respect to the last proposition on the power contained in the Court pursuant to provisions of s 130 of the Evidence Act 1995 (the Evidence Act). This provision is based on the common law approach as it has developed with respect to public interest privilege. It was not intended to abandon the supervisory role of the courts but rather to enable the assessment of claims of privilege by a body without direct interest in the determination. The section provides guidelines for the exercise of the balancing task which weighs the advantages of non-disclosure of information against the disadvantages. It seems it was intended to improve the predictability of the operation of the proposals in the consistency of their application. 4. The Applicant in these proceedings brings a claim in respect of anxiety and/or depression consequent upon the nature and conditions of her employment from 1 January 1995. It is alleged that, in part, the Applicant suffered a psychological injury as a consequence of the unreasonable actions taken by the Respondent in relation to a forced transfer. There is a real issue in this case in respect to whether or not the actions taken by the Respondent in the forced transfer of the Applicant were reasonable pursuant to the provisions of section 11A of the Workers Compensation Act 1987 (as amended). 5. The report by the Audit Directorate is the result of an appeal to it by the Applicant relating to the forced transfer of the Applicant as a consequence of a direction that the teaching staff at the Francis Greenway High School be reduced. 6. In such situations particular procedures are required to be followed and a teacher nominated for transfer has an appeal right to the Principal, School Staffing Unit and the Audit Directorate. 7. Access is sought to the whole of the report of the Audit Directorate in respect of the appeal to it by the Applicant. 8. It is a significantly relevant document in respect of the above mentioned issue and could have an important bearing on the outcome of the Applicant's case. 9. It is also to be noted that I have been informed that the Applicant has not been officially informed of the outcome of the deliberations of the Audit Directorate but has been informed orally of a favourable report which the Department does not propose to follow in light of what it says is new evidence. It is to be noted that the report contains a number of recommendations in relation to the issue mentioned above. 10. There was no objection by the parties that the report be inspected by the court in order to determine the claim for a denial of access. 11. Section 130 (1) of the Evidence Act refers on one hand to the public interest in admitting into evidence information or a document that relates to matters of state and on the other hand to the public interest in preserving secrecy or confidentiality in relation to the information or document . It does not, however, attempt to spell out the content of these public interests. See S Odgers Uniform Evidence Law (4th edition) at 340. 12. The common law recognised the public interest in the admission of all relevant and admissible evidence in order to achieve justice in the case. If the material, for example, gives substantial support to a contentious issue in the case and that without it the Applicant in this case might be deprived of a proper presentation of her case, the common law recognised the public interest might not be served. See Burmah Oil Co Ltd v Bank of England [1980] AC 1090 at 1127. See also Air Canada v Secretary of State for Trade (No. 2) [1983] 2 AC 394 at 442. The High Court in Commonwealth v Northern Land Council (1993) 176 CLR 604 at 616, in approving Gibbs A-CJ in Sankey v Whitlam (1978) 142 CLR 1, expressed the same view wherein it indicated that public interest immunity must be weighed against the competing public interest of the proper administration of justice, which could be impaired by the denial to a court of access to relevant and otherwise admissible evidence. The general desirability of non disclosure must be balanced against the need to produce the material in the interests of justice. 13. The Court is to decide which aspect of the public interest predominates or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court in performing its functions should be denied access to relevant evidence: see Sankey v Whitlam per Gibbs A-CJ at 38 and 39. 14. Only in cases with quite exceptional circumstances which give rise to a significant likelihood that the public interest in the proper administration of justice outweighs the very high public interest in the confidentiality of documents will it be necessary to order access: see Northern Land Council at 619. 15. The Evidence Act, s 130(4)(f) states Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would: … (f) prejudice the proper functioning of the government of the Commonwealth or a State. 16. The looseleaf service Byrne, D and Heydon, J D Cross on the Evidence, Vol 1 at [27 120] indicates that confidentiality may be a very material consideration to bear in mind when privilege is claimed on the ground of public interest. However, it indicates that in light of the reasoning in Conway v Rimmer [1968] 1 All ER 874 it may be supposed that claims for protection of confidential material provided to internal investigations or disciplinary enquiries would have little chance of success before a modern court. 17. Ultimately the question is to turn on an identification of the public interest which is involved. The claim is based on the argument that the department will be impaired in its operation by the publication of material because informants would be unable to rely upon the absolute confidence as to their identity and the content of their communication. There would be a consequent lack of reliable informants. Where a communication is made on the basis of confidence, an informant is entitled to expect that his confidence will be respected. Since Conway and Whitlam, the more flexible approach of the courts to public interest immunity claims has led to most cases of such a claim being based upon the aforementioned arguments. See Cross on Evidence at [27 080]. 18. The report in this instance contains findings and recommendations as a consequence of investigations undertaken by a principal investigator and documentation from various parties including a significant number by the Applicant, upon which, his findings and recommendations were made. 19. Undoubtedly a number of those required to assist in the investigation could well be called as witnesses by either party in this case. 20. Other documents contained in the report are handbooks which are clearly available publications. 21. I can see nothing within this report which should be protected from the Applicant on the grounds that it will impede the coming forward of informants. Those who gave information to the principal investigator in these circumstances were required to respond to his requests. 22. If anyone is to be protected from providing confidential material or having confidence to appeal to the Audit Directorate it is the Applicant in this case. In that regard the Protected Disclosures Act 1994 — whose object was to encourage and facilitate the disclosure in the public interest of among other things maladministration in the Public Sector — provides in s 22 a confidentiality guideline which provides that the person who has made the protected disclosure may consent in writing to the disclosure of that information. In this instance the Applicant has consented to such disclosure of the report to her legal representatives. See exhibit AX 2. 23. The document contains information which may enable the Applicant to advance her own case and may also damage the case of the Department. It may also lead to a train of inquiry which may have either of the two above mentioned consequences. I do not consider that the Applicant should be deprived of the means of the proper presentation of her case because I do not consider that in the balancing act there is a sufficient weighty public reason against it. These are not documents relating the formulation of government policy or documents decided at a higher level. I think that the aspect of the public interest therefore which predominates in this case is that which requires that the document be produced . 24. The public interest which requires that the document should not be produced does not outweigh the public interest that a Court in performing its functions should deny access to relevant evidence. 25. Moreover, there are safeguards within the provisions of the legislation where the court may adopt strategies to limit the effect of adducing evidence of the information or the documents. 26. In this case, what is sought is access to the Applicant's legal representatives to inspect the documents. I do not propose therefore to make a general access order but rather to restrict access to the legal representatives of the Applicant to inspect the documents at the Registry with no-right-to-photocopy access. I also order that the information contained in the report only be used in the particular hearing. 27. I order the Respondent pay the Applicant's costs of this application. Mr M G Cummings instructed by Whitelaw McDonald appeared for the Applicant. Mr S L C Flett instructed by Rankin Nathan appeared for the Respondent. 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.