Reported Decision : (2002) 55 NSWLR 347 New South Wales Court of Appeal CITATION : Director-General of the Department of Fair Trading v Vasey Housing Association NSW [2002] NSWCA 320 FILE NUMBER(S) : CA 40959/01 HEARING DATE(S) : 3 September 2002 JUDGMENT DATE : 27 September 2002 PARTIES : Director-General of the Department of Fair Trading - Appellant Vasey Housing Association NSW - Respondent JUDGMENT OF : Handley JA at 1; Sheller JA at 2; Giles JA at 3 LOWER COURT JURISDICTION : Common Law Division - Administrative Law List LOWER COURT SC 30055/01 FILE NUMBER(S) : LOWER COURT Cooper AJ JUDICIAL OFFICER : COUNSEL : P Roberts SC & R J Bromwich - Appellant G A Flick SC & A J McInerney - Respondent SOLICITORS : D Catt, Solicitor, Department of Fair Trading - Appellant Gadens - Respondent CATCHWORDS : Administrative law - authority gives statutory notice to produce documents - recipient brings proceedings challenging its validity - recipient gives authority notice to produce various documents - documents produced - whether access should be granted to the produced documents - belief required of authority's investigator who gives the statutory notice - relevance of the produced documents to the belief or otherwise in the proceedings. D Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1980) 31 ALR 519; Cain v Glass (No 2) (1985) 3 NSWLR 230; D v National Society for the Prevention of Cruelty to Children (1978) AC 171; National Employers' Mutual General Association Ltd v Waind (1978) 1 NSWLR 372; CASES CITED: R v Young (1999) 46 NSWLR 681; Sankey v Whitlam (1978) 142 CLR 1; Shannahan v Trade Practices Commission (1991) 28 FCR 239; TNT Australia Pty Ltd v Fels (1992) ATPR 41-190; W A Pines Pty Ltd v Bannerman (1980) 30 ALR 559. DECISION : (1) Appeal allowed in part; (2) Set aside the orders of Cooper AJ so far as his Honour ordered that the access to documents be on the proviso that the names, addresses and telephone numbers of residents appearing in the documents be deleted, and in lieu thereof order that the access to documents be on the proviso that any parts of the documents which identify or tend to identify residents of the respondent's retirement villages be deleted; (3) Appeal otherwise dismissed; (4) Appellant pay the respondent's costs of the appeal. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40959/01 SC 30055/01 HANDLEY JA SHELLER JA GILES JA Friday 27 September 2002 DIRECTOR-GENERAL OF THE DEPARTMENT OF FAIR TRADING v VASEY HOUSING ASSOCIATION NSW Judgment 1 HANDLEY JA: I agree with Giles JA. 2 SHELLER JA: I agree with Giles JA. 3 GILES JA: This is an appeal by leave from orders made by Cooper AJ on 8 November 2001 allowing the respondent access, subject to deletion of certain names, addresses and telephone numbers, to documents produced by the appellant pursuant to a notice to produce. The appellant contended that access to the documents should not have been allowed at all, alternatively that the deletions should have been more extensive. History 4 The respondent operates a number of retirement villages. The operation of the retirement villages is subject to the Retirement Villages Act 1999 ("the Act"). 5 Under s 189(1)(b) of the Act the appellant has the function of investigating complaints by residents of retirement villages and taking such action, including prosecution for any offence, as the appellant thinks appropriate. 6 Section 18 of the Fair Trading Act 1987 empowers the appellant to appoint an investigator for the purposes of that Act and of any other legislation administered by the Minister. The Minister also administers the Act. In the Act "investigator" is defined to mean an investigator appointed under the Fair Trading Act. 7 Section 193 of the Act provides - " 193 Power of investigator to obtain information, documents and evidence (1) If an investigator believes on reasonable grounds that a person is capable of giving information, producing documents or giving evidence in relation to a matter that constitutes, or may constitute, an offence against this Act or the regulations, the investigator may, by notice in writing given to the person, require the person: (a) to provide an investigator, by writing signed by the person (or, in the case of a body corporate, by a competent officer of the body corporate) and given to the investigator within the time and in the manner specified in the notice, with any such information, or (b) to produce to an investigator, in accordance with the notice, any such documents, or (c) to appear before an investigator at a time and place specified in the notice and give any such evidence, either orally or in writing, and produce any such documents. (2) If an investigator believes on reasonable grounds that a person has engaged, or is engaging, in conduct that constitutes, or may constitute, an offence against this Act or the regulations, the investigator may, for the purpose of ascertaining by the examination of documents in the possession or under the control of the person whether the person has engaged, or is engaging, in that conduct: (a) enter any retirement village, residential premises or other premises, and (b) inspect any documents in the possession or under the control of the person, and (c) make copies of, or take extracts from, those documents. (3) A person must not: (a) without reasonable excuse, refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it, or (b) in purported compliance with such a notice, provide information, or give evidence, that the person knows is false or misleading, or (c) hinder or obstruct an investigator exercising his or her functions under subsection (2)." 8 By s 195 of the Act the appellant, amongst others, may inspect a document produced in accordance with a notice under s 193 and may make copies of and take extracts from the document. 9 On 22 August 2001 Ms Lovaine Deane, an investigator appointed under the Fair Trading Act, gave notice in writing to the respondent expressed to be pursuant to s 193(1) of the Act requiring that it produce to her the documents specified in the schedule attached to the notice. The notice began - "I, Lovaine Dean, Investigator, appointed under section 18 of the Fair Trading Act 1987, do on reasonable grounds as set out in the attached 'Notice of Belief', believe that you are capable of producing documents in relation to a matter that constitutes or may constitute an offence against the Retirement Villages Act 1999, namely The Vasey Housing Association NSW in the operation of the retirement villages known as 'Elizabeth Court' at Concord, 'Epping Manor' at Epping, 'Wurley Court' at Hunters Hill, 'Northcott Gardens' at Lane Cove, 'Ivan Court' at Maroubra and 'Parkview' at Waitara has: · failed to annex a disclosure statement that complies with the Act to a village contract - contrary to section 18 of the Act; · failed to provide a disclosure statement that complies with the Act to a person earlier than 14 days before the person entered into a village contract – contrary to section 18 of the Act; · failed to make available for inspection certain documents to prospective residents – contrary to section 20 of the Act; · varied the recurrent charges other than in accordance with the fixed formula – contrary to section 105 of the Act (other than in respect of 'Ivan Court' at Maroubra); · varied the recurrent charges without giving 60 days notice – contrary to section 106 of the Act; · failed to provide a notice that complied with the provisions of the Act regarding proposed expenditure to each resident 60 days before the commencement of the financial year – contrary to section 112(1) of the Act; · spent money received by way of recurrent charges without residents approval – contrary to section 116(3) of the Act; · failed to pay the correct payment to former occupants – contrary to section 181(2) of the Act." 10 The attached "Notice of Belief" read - "NOTICE OF BELIEF UNDER SECTION 193(1) OF THE RETIREMENT VILLAGES ACT 1999 I, Lovaine Dean, Investigator, appointed under Section 18 of the Fair Trading Act 1987, believe on reasonable grounds set out in the Schedule to Notice of Belief that The Vasey Housing Association [sic] is capable of producing documents in relation to a matter that constitutes, or may constitute an offence against sections 18, 20, 105, 106, 112, 116 and 181 of the Retirement Villages Act 1999. Dated: 22 August 2001 (signed) Lovaine Dean SCHEDULE TO NOTICE OF BELIEF 1. The Vasey Housing Association NSW operates retirement villages as defined by the Retirement Villages Act 1999 known as 'Elizabeth Court' at Concord, 'Epping Manor' at Epping, 'Wurley Court' at Hunters Hill, 'Northcott Gardens' at Lane Cove, 'Ivan Court' at Maroubra and 'Parkview' at Waitara (the retirement villages). 2. The Vasey Housing Association NSW must operate the retirement villages pursuant to the Retirement Villages Act 1999. 3. Residents, as defined by the Act, of the retirement villages who have residence rights in respect of residential premises within the retirement villages reside within the retirement villages. 4. The Vasey Housing Association NSW receives recurrent charges from residents of the retirement villages. 5. The Vasey Housing Association NSW incurs expenditure at each of the retirement villages. 6. Some residents of Elizabeth Court have moved to other Vasey Housing Association retirement villages. 7. Some residents have left the retirement villages." 11 The schedule attached to the notice listed fourteen categories of documents, all "in respect of" the named retirement villages operated by the respondent. The categories were - "1. Disclosure statements provided to prospective residents during the period 1 July 2000 to 21 August 2001. 2. Examples of village contracts available for inspection for incoming residents as required under section 20 of the Act for the period 1 July 2000 to 21 August 2001. 3. All statements of approved expenditure for the financial year commenced 1 April 2000. 4. All documents showing receipt of money received by way of recurrent charges, including but not limited to invoices, receipts, cheque books, bank statements, cash books and petty cash vouchers/books, for the financial year commenced 1 April 2000. 5. All documents showing expenditure of money received by way of recurrent charges, including but not limited to invoices, receipts, cheque books, bank statements, cash books and petty cash vouchers/books, for the financial year commenced 1 April 2000. 6. All statements of proposed expenditure for the financial year commenced 1 April 2001. 7. The forms of residents' consent to expenditure in respect of approved expenditure for the financial year commencing 1 April 2001. 8. All statements of approved expenditure for the financial year commenced 1 April 2001. 9. All documents showing receipt of money received by way of recurrent charges, including but not limited to invoices, receipts, cheque books, bank statements, cash books and petty cash vouchers/books, for the financial year commenced 1 April 2000. 10. All documents showing any expenditure of money received by way of recurrent charges, including but not limited to invoices, receipts, cheque books, bank statements, cash books and petty cash vouchers/books, for the period 1 April 2001 to 21 August 2001. 11. All village contracts, with annexures, with all current and former residents that were in force as at 1 July 2000. 12. All village contracts entered into between 1 July 2000 and 21 August 2001. 13. All notices issued in respect of variations in recurrent charges according to a fixed formula in respect of the period from 1 July 2000 to 21 august 2001. 14. All notices issued in respect of variations in recurrent charges otherwise than by fixed formula in respect of the period from 1 July 2000 to 21 August 2001." 12 On 3 September 2001 the respondent filed a summons in which it claimed as against the appellant a declaration that the s 193(1) notice "is null and void and of no effect". By a notice of motion filed at the same time it claimed interlocutory relief whereby it did not have to comply with the notice until the determination of the summons. 13 The notice of motion was returnable on 4 September 2001, and came before Sully J. His Honour ordered that the summons, previously returnable on 18 September 2001, be made returnable before him on 6 September 2001, and as well as directing the filing and service of affidavits to be relied upon by the parties made the order - "3. The defendant is to file and serve not later than 10.00 am on 5 September 2001 an affidavit of Lovaine Dean, an investigator appointed under section 18 of the Fair Trading Act 1987, stating clearly and comprehensively the 'Reasonable grounds' upon which she supports her belief, as required by section 193(1) of the Retirement Villages Act 1991[sic]". 14 The appellant filed and served an affidavit of Ms Dean sworn on 4 September 2001. Ms Dean said that she attended a meeting at one of the respondent's retirement villages at which residents told her "of certain matters … involving the management of the Village" and "provided her with documents in support of their allegations" (para 3), and that the issues raised by the residents caused her to be concerned about the respondent's management of the village. She described the issues. She said that she was provided by another officer of the Department of Fair Trading with "a number of complaints made by residents of other retirement villages operated by the plaintiff" (para 7), and described the complaints. She said that she examined "all of the material provided to me and made further inquiries with other residents of the villages" (para 9). Ms Dean said that she formed a number of beliefs - "10. As a result of examining the material, I formed the belief that the disclosure statement was not in the form prescribed by the Act, in that information required under Schedule 1 (Disclosure Statement) of the Retirement Villages Regulation 2000 ('the Regulation') was not provided or not provided in the form required and therefore the plaintiff which [sic] may be in breach of section 18 of the Act. 11. I further formed the belief that the statement of proposed expenditure does not comply with the requirements of the Act and therefore there are no statements of approved expenditure, which may be in breach of section 20 of the Act. 12. I further formed the belief that the village contract does not comply with the requirements of the Act, in that information that must be included as required under Schedule 3 (Matter to be included in village contracts) as to the Regulations was not included and information that should be excluded under Schedule 4 (Matter to be excluded from village contracts) to the Regulations was included in the village contract which may be in breach of section 20 of the Act. 13. I further formed the belief that notices as required by the Act in regard to recurrent charges varied by fixed formula had not been provided to residents on a fixed formula contract, which may be in breach of section 105 of the Act. 14. I further formed the belief that notices as required by the Act in regard to recurrent charges varied by non-fixed formula had not been provided to residents on a non-fixed formula contract, which may be in breach of section 106 of the Act. 15. I further formed the belief that the statements of proposed expenditure provided to the residents was [sic] not accompanied by a notice as required, which may be in breach of section 112 of the Act. 16. In addition, I formed the belief that, as the statements of proposed expenditure were not in the form required by the Act and, in respect of two villages, residents' consent had not been given, there were no statements of approved expenditure, which may be in breach of section 116 of the Act. 17. In addition, I formed the belief that the plaintiff was not refunding ingoing contributions paid by residents in accordance with the terms of their contracts, which may be in breach of section 181 of the Act. 18. In a letter dated 26 March 2001 to a resident whose name has been covered as she does want [sic] to be identified a copy of which is Annexure B, the plaintiff disclosed that the residents of the village at Hunters Hill had not as at that date agreed to the statement of proposed expenditure for the financial year commencing 1 April 2001. 19. The financial year for the plaintiff's operations commences on 1 April 2001 and there could have been no statement of approved expenditure to operate from that date. 20. From documents already inspected I hold the belief that the plaintiff issues similar documents in respect of all retirement villages and that breaches may have occurred in respect of the operation of all retirement villages operated by the plaintiff." 15 On 5 September 2001 the respondent served on the appellant a notice to produce, requiring the production on 6 September 2001 of the documents - " Schedule A 1. The instrument of appointment of Lovaine Dean as an investigator pursuant to section 18 of the Fair Trading Act 1987 (NSW). 2. Copies or originals of the 'number of documents' referred to in paragraph 3 of the affidavit of Ms Lovaine Dean sworn 4 September, 2001 ('Ms Dean's affidavit'). 3. Original or copy of the disclosure statement and village contract provided by the Plaintiff and referred to in paragraph 6 of Ms Dean's affidavit. 4. Originals or copies of all of the complaints referred to in paragraph 7 of Ms Dean's affidavit. 5. Any document recording or relating to the 'further enquiries' made by Ms Dean and referred to in paragraph 9 of Ms Dean's affidavit. 6. 'All of the material' referred to in paragraph 9 of Ms Dean's affidavit. 7. Any document recording or relating to any investigation by the Department of Fair Trading in relation to the commission, or possible commission by the Plaintiff of an offence against the Retirement Villages Act 1999 (NSW) ('the Act') (or the Retirement Villages Regulations 2000 ('the Regulations'). 8. Any document recording or relating to an assessment by the Department as to whether the plaintiff has committed, or may have committed, an offence against the Act or the Regulations." 16 When the summons came before Sully J on 6 September 2001 his Honour was told by counsel for the respondent that "[t]here is a question whether reasonable grounds existed". Counsel referred to Ms Dean's affidavit, and said, "We have served a notice to produce seeking the documents referred to in the affidavit. If those documents go any way to supporting the views expressed in the affidavit, that as a ground will be abandoned, but we need to satisfy ourselves that [it] is a ground not to be ventilated at this stage". 17 The respondent called on the notice to produce. The appellant objected to production pursuant to the notice to produce, save for the instrument of appointment of Ms Dean as an investigator, saying that the notice to produce was "an abuse of process and a fishing exercise and serves no legitimate forensic purpose". After some discussion, in which the appellant also asserted public interest immunity, his Honour ordered interlocutory restraint on enforcement of the s 193(1) notice and - "2. That the defendant produce to the Court no later than 4 pm on Monday 10 September instant the documents, the production of which is called for in the notice to produce, mfi 1. 3. That the plaintiff not have access to those documents save for the document numbered 1 in schedule A to the notice to produce, without an order of a judge of this Court. 4. That the parties have leave to approach the list judge in the Common Law Division to the end of having fixed for hearing a contested application by the plaintiff for access to the documents referred to in order 2." 18 The parties approached the list judge, Whealy J, who fixed the application for access to the documents produced pursuant to the notice to produce for hearing on 23 October 2001. The application was heard by Cooper AJ, and was disposed of by the orders of 8 November 2001. The reasons of Cooper AJ 19 His Honour first considered whether the issue before him was one of setting aside paras 2 to 8 of the notice to produce or one of access to the documents which had been produced. Referring to what had been said before and by Sully J and before Whealy J when his Honour fixed the matter for hearing, his Honour said that the issue was whether access to the documents should be given to the respondent. 20 His Honour set out the three bases upon which the appellant submitted that the respondent should not have access to the documents, namely - "1. The documents are protected from disclosure by Section 200 of the Retirement Villages Act. 2. Vasey has no legitimate forensic purpose in seeking access to those documents. 3. If neither of the above succeed then the documents are protected from disclosure by public interest immunity." 21 As to the first basis, his Honour held that s 200 of the Act did not protect the appellant from producing documents under a notice to produce. 22 In going to the second basis concerning legitimate forensic purpose, his Honour noted that the respondent argued that Ms Dean had set out her beliefs and her reasonable grounds for the beliefs in her affidavit of 4 September 2001 and that it "should be entitled to view the documents referred to in that affidavit so that it can test the reasonableness of the beliefs of the investigator". He said that both parties relied on WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559, and set out the passages on which they respectively founded their reliance. 23 The appellant relied on that case for the reasons for the refusal of discovery given by Brennan J at 567, in the passages - "In the present case discovery is sought before there is a tittle of evidence to suggest that the Chairman did not have the requisite cause to believe which paragraph 6 of the Statement of Claim would put in issue.' and later - "This is a case where a bare allegation is made by para 6 of the statement of claim and, the paragraph being denied, the applicant seeks to interrogate the Chairman and ransack his documents in the hope of making a case. This is mere fishing." 24 His Honour continued - "49 On behalf of DFT it is submitted that in the present case the onus of establishing lack of the requisite belief on reasonable grounds lies upon Vasey; there is not a tittle of evidence that the investigator lacked such belief on reasonable grounds and accordingly neither Vasey nor its legal representatives is entitled to access to the documents. It further points out that, in these circumstances, the notice to produce is no more than an aid in what is essentially a fishing exercise. 50 On behalf of Vasey it is submitted that this case is distinguishable on its facts from Bannerman's case. In this case there is clear evidence in the affidavit and also in the schedules to the Section 193 Notice of certain allegations of fact. It is submitted that Vasey is entitled to see the documents to test whether those facts amount to matters which constitute or may constitute an offence under the Act or Regulations. For example, the schedule refers to complaints. Complaints per se are not matters which constitute or may constitute a breach of the Act on the part of Vasey. 51 In my view this aspect of the case is distinguishable from the facts in Bannerman's case and Vasey does have a legitimate forensic purpose in having access to the documents which are included in the disputed paragraphs of the notice to produce. These are documents which are referred to in the affidavit of the investigator referred to above and filed in accordance with the order of Sully J." 25 His Honour then turned to public interest immunity. He set out passages from R v Young (1999) 46 NSWLR 681 describing the balancing of competing aspects of public interest. He said that it was there explained that the rationale for public interest immunity in respect of police informers "is that unless the names of informers are protected, sources of information would dry up, thus hindering the police in the detection and prevention of crime". His Honour continued - "57 I would interpolate here that this has been extended to other forms of law enforcement officers and in my view would include the names of informers or those who provide information to investigators performing duties under the Retirement Villages Act." 26 The appellant had filed and served an affidavit of Mr Christopher Hanlon sworn 23 October 2001 in which he described the documents for which public interest immunity was claimed, organised into six folders, and asserted the grounds for the claim with respect to the documents in each folder. His Honour said that he had looked at the documents in the folders. 27 As to the Folder 1 documents his Honour noted, using language from Mr Hanlon's affidavit - "61 Public interest immunity is claimed in respect of these documents because disclosure to the plaintiff may reveal the defendant's sources of information within the villages operated by the plaintiff. The residents are elderly and as well are vulnerable as they reside and must reside in the plaintiff's premises. The particular copies of documents issued by the plaintiff may identify the residents to whom they were issued. The defendant's investigation depends upon information being available from residents." 28 His Honour said that the documents in Folder 1 were mainly the respondent's own documents sent by it to certain residents, that he agreed "that the name and identity of those residents is protected by public interest immunity in a manner analogous to the protection given to the identity of police informers", and that apart from that he could "find no other aspect of public interest immunity". He said that he would allow access to the documents "provided that the names, addresses and phone numbers of residents appearing therein are deleted." 29 The claim for public interest immunity as to the Folder 2 documents was on the same ground. His Honour said that the only aspect of public interest immunity in those documents was "the identification of the residents who gave information to the department", and that he would allow access to all the documents "with the deletion of the names, addresses and phone numbers which may identify the particular residents." 30 The claim for public interest immunity as to the Folder 3 documents was on the same ground. His Honour said that two particular documents were "entitled to protection from production in accordance with the principles of Legal Professional Privilege" and one document was entitled to public interest immunity because it "in effect sets out the internal reasoning of the department relating to courses of action". Mr Hanlon had not asserted either entitlement or ground of entitlement for the Folder 3 documents. His Honour said that he would allow access to the remaining documents "subject to deletion of the names, addresses and phone numbers of residents appearing thereon." 31 The claim for public interest immunity as to the Folder 4 documents was on the same ground. His Honour said - "76 In my view after having inspected the documents, they are in the main Vasey's own documents and, subject to the deletion of the names, addresses and phone numbers of residents appearing on them, access should be granted to Vasey." 32 The claim for public interest immunity as to the Folder 5 documents was on the same ground. His Honour said that four particular documents should not be disclosed because they "relate to communications with Ministers and in my view are subject to public interest immunity", and that the remaining documents should be disclosed "subject to the deletion of the names, addresses and phone numbers of residents appearing therein". 33 With respect to Folder 6 his Honour said, in the second sentence of the first paragraph again using language from Mr Hanlon's affidavit - "83 Public interest immunity in respect of these documents is claimed on the same grounds as the former documents. In addition such immunity is claimed in respect of DFT internal documents in Folder number 6 relating to assessment of the plaintiff's documentation and analysis of complaints because these would reveal decisions taken in formulating the Department's compliance strategy concerning retirement villages. 84 There is much force in the claim just mentioned. I also agree with the statement in paragraph 16 of Mr Hanlon's affidavit:- 'The material contained in folder CJH6, tends to indicate the manner in which the department makes decisions concerning how it will secure compliance by persons who may be in breach of legislation. It is undesirable that this material be made available outside the department as it will inhibit the effectiveness of the department's compliance activities.'" 34 His Honour said that he would not allow access to four particular documents, but that he allowed access to the remaining documents in the folder "with the deletion therefrom of the names, addresses and phone numbers of residents". Setting aside and s 200 of the Act 35 On appeal the issue remained one of access to the documents, and the appellant did not maintain the basis that the documents are protected from disclosure by s 200 of the Act. Legitimate forensic purpose 36 Legitimate forensic purpose normally arises on an application to set aside a subpoena or notice to produce, at the first step described by Moffit P in National Employers' Mutual General Association Ltd v Waind (1978) 1 NSWLR 372. As his Honour there explained, the issue of a subpoena (and a notice to produce between parties is in the same position) would be an abuse of process - " … if it were not sought for the purpose of the litigation, but for some spurious purpose, such as to inspect the documents in connection with other proceedings, or for some private purpose, or in collusive proceedings to give them publicity. A witness might argue that the documents must be sought for some undefined spurious reason, as they have no conceivable relevance to the proceedings". (at 382) 37 Any question of setting aside the notice to produce fell away when Sully J ordered that the documents for which it called be produced to the Court, an order against which there was no appeal. The appellant had unsuccessfully sought to agitate before Cooper AJ setting aside the notice to produce. Its leave to appeal from the orders made by Cooper AJ did not extend to his Honour's determination that the issue was one of access to the documents which had been produced. 38 The argument of no legitimate forensic purpose put by the appellant on the issue of access to the documents was no more and no less than an argument of relevance. The question of the respondent's access to the documents arises at the second step spoken of in National Employers' Mutual General Association Ltd v Waind at 382-5. The notice to produce has not been set aside. The documents have been produced to the Court. Access to irrelevant material may be refused, but "[t]he crucial question in relation to the exercise of the discretion to permit inspection in the second step is whether the documents have apparent relevance to the issues" (at 385). The language of legitimate forensic purpose, which may have been a hangover from whether the notice to produce should be set aside, was inappropriate, although no harm is done provided it is appreciated that the notion invoked is not that of abuse of process. 39 The appellant submitted in the appeal that the respondent could not have a legitimate forensic purpose in access to the documents called for in the notice to produce because the documents were irrelevant to the belief required by the opening words of s 193(1) of the Act, a belief - " … on reasonable grounds that a person is capable of giving information, producing documents or giving evidence in relation to a matter that constitutes, or may constitute an offence against this Act or the regulations ... ". 40 In the appellant's submission, the belief for which there had to be reasonable grounds was one of capacity to give information, produce documents or give evidence, and it was not necessary that the investigator believe that an offence against the Act or the regulations had been or may have been committed. There could be no doubt, it was said, that the respondent was capable of producing the documents the subject of the notice given to it, because they were all documents which the respondent should have held or could be expected to hold. It was not open to challenge Ms Dean's belief on the basis that she did not have reasonable grounds for believing that an offence against the Act or the regulations had been or may have been committed, because it was not necessary that she hold such a belief. Section 193(1) was contrasted with s 193(2), and it was said that s 193(2) was "more invasive" than s 193(1) and so required the wider belief in commission of an offence. The appellant submitted that the documents called for in the notice to produce may have been relevant to belief in commission of an offence, but they were not relevant to belief in capacity to produce the documents in the s 193(1) notice. 41 It should be noted that the argument was different from the argument put to Cooper AJ. Sully J had directed that there be an affidavit from Ms Dean setting out the reasonable grounds "upon which she supports her belief, as required by s 193(1) of [the Act]". The affidavit of 4 September 2001 had been filed and served. In that affidavit Ms Dean had put forward grounds for beliefs that a number of offences may have been committed. Before Cooper AJ the ground for the appellant's contention that there was no legitimate forensic purpose was in a sense irrelevance, but it was irrelevance because the respondent had not provided "a tittle of evidence" to cast doubt on Ms Deane's belief, and was fishing. The appellant's then argument proceeded on a quite different understanding of s 193(1), an understanding that an investigator's belief properly extended to belief in commission of an offence, and did not turn on the nature of the belief required by s 193(1). 42 Counsel for the appellant came to concede in the appeal that, if his submission were correct, Ms Dean's affidavit of 4 September 2001 was misconceived and was itself irrelevant to the belief required by s 193(1). 43 The appellant's argument had two limbs. The negative limb was that it was not necessary that the investigator believe that an offence against the Act or the regulations had been or may have been committed. The positive limb was that the belief for which there had to be reasonable grounds was one of capacity to give information, produce documents or give evidence. It was submitted that Cooper AJ was in error in that, contrary to the negative limb, he upheld a legitimate forensic purpose of testing Ms Dean's belief in commission of an offence. It is not surprising that he did, given Ms Dean's affidavit, and if there was error it was because the appellant had put forward a misconceived affidavit. 44 First considering the negative limb, we were taken in some detail to W A Pines Pty Ltd v Bannerman, to passages other than those which the appellant had relied on before Cooper AJ. It concerned a notice given under s 155 of the Trade Practices Act 1974, which relevantly provides that a notice may be served - "Where the Commission, the Chairman or the Deputy Chairman has reason to believe that a person is capable of furnishing information, producing documents, or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act … ". The words are similar to, but not identical with, the words in s 193(1) of the Act. 45 W A Pines Pty Ltd v Bannerman supports the view that an investigator need not believe that an offence against the Act or the regulations has been or may have been committed. 46 Brennan J pointed out (at 565) that the words in s 155(1) "that constitutes, or may constitute, a contravention" qualify "matter", and that the denotation of "matter" is not affected by a belief held by the Chairman. His Honour said that "matter" refers to a body of facts, and - "Whether or not the relevant body of facts constitutes a contravention is a matter of law, and that question does not turn upon the perception or knowledge of the facts held by the Chairman or any other person. But when the section speaks of a matter which 'may constitute' a contravention, it speaks not of the relevant and entire body of facts as they exist or have existed — for that body of facts either does or does not constitute a contravention — but of a body of facts which are not fully known and which, if and when they are fully known, may reveal themselves as constituting a contravention. A 'matter that may constitute a contravention' is the facts being investigated, some of which are not known by the Commission, the Chairman or the Deputy Chairman. However, a 'matter that may constitute a contravention' does not take its character from the belief of the Commission, the Chairman or the Deputy Chairman, but from the nature and quality of the facts as they are or have been and as they may reasonably be suspected to be or to have been." 47 Lockhart J also said (at 569) that the words "that constitute, or may constitute, a contravention of this Act" qualify "matter" and not "has reason to believe", and said (at 572) "that 'matter' is itself a complex of facts which together answer the description of the 'matter' that 'constitutes' or 'may constitute' a contravention of the Act". His Honour said (at 573) - "The belief of the Commission whether there has been or may be a contravention is not necessary for the valid exercise of the powers of the Commission; but it must have a well-founded belief that the recipient of the notice is capable of providing information, producing documents or giving evidence that may assist in determining whether a contravention has occurred or may occur." 48 Lockhart J also said (at 574) - "The words 'that constitutes or may constitute a contravention of this Act' are merely descriptive of the topic or subject-matter of investigation by the Commission. The Commission must believe that a person is capable of furnishing information, producing documents or giving evidence that relates to that topic or subject-matter. There is no necessity for the Commission to believe that there has been or may be a contravention." 49 Counsel for the respondent drew our attention to TNT Australia Pty Ltd v Fels (1992) ATPR 41-190, in which Gummow J succinctly stated (at 498-9) - "It is accepted by all parties that the expression in sub-s 155(1) 'has reason to believe' states a condition precedent to the valid imposition of requirements under the section, and that what is involved is both an actual belief and a proper basis in fact for that belief, in the sense that there must be reasonable grounds or cause for the belief. The belief must relate to the capacity of the addressee of the notice to furnish, produce or give the information, document or evidence sought; there is no statutory requirement that the TPC, the Chairman or the Deputy Chairman believe that there has been or may be a contravention of the statute. Further, the phrase 'relating to a matter' refers to a body or complex of facts that constitute or may constitute contraventions." 50 The respondent submitted that s 193(1) of the Act was not in the same terms as s 155 of the Trade Practices Act, and that the statutory contexts were different in that wider powers to pursue investigations were necessary for proper fulfilment of the Trade Practices Act. The grammatical structure of the two provisions is the same, and I do not see why investigation in the interests of residents of retirement villages should be less highly regarded than investigation in the interests of participants in trade and commerce. In any event, in my view it can not be gainsaid that the words in s 193(1) "that constitutes, or may constitute, an offence against this Act or the regulations" qualify "matter". There is no necessity for the investigator to believe that an offence has been or may have been committed, although it does not invalidate the notice if the investigator does so believe (Shannahan v Trade Practices Commission (1991) 28 FCR 239). 51 It is then necessary to consider the positive limb of the appellant's argument. What is the belief required of the investigator? At times the appellant's submissions appeared to stop short with capacity to produce documents, reflecting the words in s 193(1) "is capable of giving information, producing documents or giving evidence" but taking no account of the further words "in relation to a matter that constitutes, or may constitute an offence against this Act or the regulations". Those further words can not be overlooked, as I think became accepted. The impression that they were being overlooked may fairly be attributed to the appellant's endeavour to contrast belief in capacity to produce documents with belief in commission of an offence, but in the result there was little attention given to the relevance of the documents called for in the notice to produce other than to Ms Dean's beliefs that a number of offences may have been committed. 52 In Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1980) 31 ALR 519 it was emphasised (at 529-31) that the power conferred by s 155 is in aid of an investigatory function. It is the same for s 193. The question of giving a s 193(1) (or s 193(2)) notice arises when there is an investigation, with the investigator's focus on "a matter that constitutes, or may constitute, an offence against this Act or the regulations". To adapt what Lockhart J said in W A Pines Pty Ltd v Bannerman at 574, those words are descriptive of the topic or subject-matter of investigation by the investigator. 53 The investigator's belief is that the person can give information, produce documents or give evidence "in relation to" the topic or subject-matter of investigation. It follows that the investigator's belief should include belief as to a topic or subject matter of investigation in relation to which the person can given information, produce documents or give evidence, there being reasonable grounds for the belief in that respect. In TNT Australia Pty Ltd v Fels, for example, limited discovery was permitted because it was arguable that the Chairman's stated belief was "colourable in the sense of being a belief of convenience" to permit him to pursue under s 155 investigations as to price charging which the Prices Surveillance Authority could not pursue. Although it was not so described, that could be seen as absence of belief as to a matter that constituted or may constitute a contravention of the Trade Practices Act. 54 The existence of a "matter", then, and its being a matter "that constitutes, or may constitute, an offence against this Act or the regulations", is part of coming to the belief in s 193(1). The investigator need not believe that an offence has been or may have been committed, but should believe that whether an offence has been or may have been committed is a topic or subject-matter of investigation in relation to which the person can give information, produce documents or give evidence. In relation to the latter belief it may be relevant to consider whether there are reasonable grounds for the topic or subject matter's existence: as Brennan J said in W A Pines Pty Ltd v Bannerman (at 565-6)- "The character of the matter is determined objectively, and if it could be shown that a contravention would not be constituted by a concatenation of facts which exist or have existed and facts which might reasonably be suspected to exist or to be about to exist or to have existed, there would be no "matter" relating to which a person could furnish information etc, as provided for by s 155(1)." 55 Whether and how this might call for consideration in the present case was not the subject of submissions. The appellant focussed on capacity to produce documents. If belief in the commission of an offence be put aside, there were no more than competing assertions of irrelevance and relevance. 56 Through no fault of his own, Cooper AJ did not address the approach to s 193(1) put to us when he allowed access to the documents in paras 2 to 8 of the notice to produce, implicitly as documents relevant to a challenge to Ms Dean's belief as set out in her affidavit. So far as Ms Dean asserted a belief that the respondent had committed or may have committed offences and his Honour regarded the documents relevant to a challenge to that belief, the parties permitted his Honour to fall into error. But for the reasons I have given it does not necessarily follow that, on a correct approach to s 193(1), the documents are irrelevant to the belief required of an investigator. 57 This Court does not have the benefit of Cooper AJ's consideration of the correct approach to s 193(1), or of his Honour's consideration of the descriptions of the documents or his inspection having in mind their relevance, if any, to the requisite belief. The parties expressly did not ask this Court to inspect the documents, and in the absence of submissions to which I have referred there would have been no point in it inspecting them. What should this Court now do? 58 The question of what this Court should do is complicated by the fact that the respondent brought its proceedings by summons, and so far as appears, has never particularised why it contends that the s 193(1) notice is invalid. In submissions to us counsel for the respondent at times indicated other challenges to Ms Dean's belief and other reasons for invalidity of the s 193(1) notice, but the indications were indefinite and chameleon-like. There should have been, if necessary by direction, clear enunciation in a statement of claim or by particulars of the grounds on which the respondent contends that the notice is invalid. 59 The proceedings were taken down a false path by the filing of Ms Dean's affidavit of 4 September 2001, but even when that is recognised it may not be possible to say that the documents are irrelevant. Ms Dean said that she held the beliefs set out in her affidavit, rightly or wrongly in response to a direction for filing an affidavit setting out the reasons supporting the belief on which she acted in giving the s 193(1) notice. She should have had a belief that whether offences may have been committed was a topic or subject-matter of investigation in relation to which the respondent could produce documents. As I have said, it may be relevant to consider whether there were reasonable grounds for the topic or subject-matter's existence. 60 It must be remembered that the application of s 193(1) and the use of documents in the challenge to the validity of the s 193(1) notice are for the hearing of the summons, normally not to be determined on an application for access to documents. To repeat, the question in relation to access to the documents called for in the notice to produce is whether they have apparent relevance to the issues. It is now over a year since the appellant gave the s 193(1) notice to the respondent and the respondent brought its proceedings. Subject to the question of public interest immunity, unless it can clearly be seen that the documents in paras 2 to 8 of the notice to produce are not relevant to a determination of the validity of the s 193(1) notice, the access granted should stand. The application of s 193(1) and the use of the documents should be considered and determined on the hearing of the summons, which ought not be further delayed, not in the abstract but with knowledge of the grounds on which the respondent contends that the s 193(1) notice is invalid and with attention to the facts as they unfold. 61 It has not been clearly shown that the documents are not relevant. Subject to public interest immunity, the respondent should have access to the documents. Public interest immunity 62 The appellant submitted on appeal that principles of public interest immunity precluded any access at all to the documents in the folders, alternatively that the deletion of the names, addresses and telephone numbers of residents was insufficient to protect them from disclosure of their identities. The respondent resisted blanket public interest immunity, but accepted that the deletions intended by Cooper AJ could be insufficient and said that before his Honour its position had been, and remained, that it did not seek access to any part of a document which identified or tended to identify any resident. The respondent accepted that it would be for the appellant to determine what should be deleted in order properly to protect the identity of residents, and was content to take issue with any apparently excessive deletion, to the extent that it was in a position to do so, by application if and when the occasion arose. 63 The appellant put forward on appeal, as it had before Cooper AJ, two grounds for the blanket public interest immunity. The first ground was that there was a need for absolute confidence in relation to complaints made by or concerning residents of retirement villages, because unless there were such confidentiality there was a substantial risk that information would not be forthcoming and residents and others would be dissuaded from complaining or seeking assistance. The appellant relied by analogy on the public interest immunity in relation to police informers. The second ground was that public interest immunity should be afforded in relation to ongoing investigations and the methodology adopted for them. 64 As has been seen, Cooper AJ upheld a public interest immunity analogous to that afforded in relation to the identity of police informers, and also upheld a public interest immunity protecting internal reasoning relating to courses of action (one document in Folder 3) and formulation of compliance strategy concerning retirement villages (four documents in Folder 6). Public interest immunity on both grounds was upheld, and by no means did the appellant fail before his Honour. It submitted that its success should have been greater. But it did not do so by submitting that Cooper AJ's assessment of which of the documents in the folders fell within the second ground for public interest immunity was erroneous. If neither ground for the blanket public interest immunity was accepted, the only further issue was the extent of the deletions. 65 The second ground for the blanket public interest immunity was but touched on, and can conveniently now be dealt with. In his affidavit of 23 October 2001 Mr Hanlon asserted generally that disclosure of the documents in paras 5 to 7 of the notice to produce "would prejudice the investigation of offences against the Retirement Villages Act 1999 in that it would reveal decisions taken in formulating the Department's compliance strategy concerning retirement villages". When he stated the claim to public interest immunity with respect to Folder 5, it was limited to revelation of sources of information. Accordingly, so far as the appellant submitted on appeal that documents in Folder 5 should have been afforded public interest immunity on the second ground the submission was undermined, and there is no reason to think that in his inspection of the documents Cooper AJ failed to pick up, as he had in relation to documents in Folder 3, unclaimed entitlement to the public interest immunity. As to the documents in Folder 6, for which a claim concerning compliance strategy was made, the claim was accepted and given effect by refusal of access to a number of documents. There is no reason to think that Cooper AJ's assessment of the documents in Folder 6 for their revelation of compliance strategy was incorrect. 66 As to the first ground for the blanket public interest immunity, the appellant submitted that even if by appropriate deletions any parts of the documents which identified or tended to identify any individual were removed, access should still be refused. It submitted that the evidence before Cooper AJ was that there was "a need for absolute confidence in relation to complaints made to the Director-General from, or concerning, retirement village residents", and that in the absence of such confidentiality there was a substantial risk information would not be forthcoming and residents would be dissuaded from complaining or seeking assistance. 67 The evidence supporting that submission was principally that of Mr Michael Finch, who said in an affidavit sworn on 16 October 2001 - "The plaintiff has requested information held by the Department in relation to its investigation. The Department can not release certain documents at this stage in order to protect the integrity of the investigation process, having regard to the early stage of the investigation, and to protect residents and others who have complained to the Department. The Department wants complainants to approach it with confidence that their requests for confidentiality will be honoured, particularly in cases where there have been allegations of harassment and intimidation. The effectiveness of the investigation also relies on tactical considerations in releasing intelligence. In particular, the effect of releasing documents referred to under points 2, 4, 5, 6, 7 and 8 of Schedule A to the plaintiff's notice to produce would be to disclose the identity of each complainant. Complainants have provided information to the Department on the Department's undertaking that their identity will be kept confidential. The effect of releasing documents referred to under points 7 and 8 of Schedule A to the plaintiff's notice to produce would be to compromise the efficiency and effectiveness of the Department's investigation by interrupting application of the appropriate investigative methodology and allowing scope for interfering with or thwarting the ongoing investigation. The effect of disclosing information that would allow complainants to be identified would deny lines of inquiry critical to the Department's function as regulator as well as potentially placing at risk the continuing well-being of residents and the peaceful enjoyment of their residential premises, especially having regard to the allegations of intimidation and harassment. Residents have provided information only after assuring themselves that the fact of their contact with the Department would not become known to third parties." 68 In addition to his affidavit of 23 October 2001 asserting the claims to public interest immunity, Mr Hanlon said in an affidavit sworn on 16 October 2001 - "It is the Department's view that the identification of persons who provide information about alleged or suspected offences or other forms of non-compliance is undesirable. It is undesirable because it acts as a strong disincentive to persons to provide information to authorities who are responsible for the maintenance of law. It is undesirable because it may expose the informant to retaliation or other adverse consequences. It is undesirable because it hampers the ability of the regulator to receive, assess, test and act upon such information. It is also undesirable because it reduces the effectiveness of, and may completely negate, the regulator's efforts to secure compliance by traders with relevant legislation and other rules." 69 This evidence is much less compelling than that in, for example, D v National Society for the Prevention of Cruelty to Children (1978) AC 171 at 217-8. Identification of residents is the key, not absolute confidence, and in particular not confidence (whether absolute or limited to identification) where the resident has not requested confidentiality. It should be noted that in D v National Society for the Prevention of Cruelty to Children non-disclosure was ordered where documents revealed or were capable of revealing the identity of the informant. The evidence does not warrant class protection of complaints made by or concerning residents regardless of confidentiality or tendency to identify residents. It should be said that there was no cross-appeal, and so no occasion to consider whether it warrants the protection upheld by Cooper AJ. 70 The appellant relied on Cain v Glass (No 2) (1985) 3 NSWLR 230, in which public interest immunity in respect of the production of police running sheets containing material identifying police informants was considered. The appellant said that in his discussion of principles at 246-8 McHugh JA held that the "informer rule" was exceptional, in that the public interest in maintaining a flow of information was dominant and there was no balancing of competing public interests. Nonetheless, what was protected was the identification of informers. In fact copies of the running sheets with the deletion of anything identifying the informants had been made available. 71 It is well established that confidentiality of itself, if complaints are made to the appellant in confidence (which is not necessarily so), does not attract public interest immunity for the entirety of the communication: see Sankey v Whitlam (1978) 142 CLR 1 at 42-3; D v National Society for the Prevention of Cruelty to Children at 218, 230; R v Young at 699. I do not think that the evidence supported wider protection being afforded to the appellant's documents, so that there should be no access to them even if deletions were made of anything identifying or tending to identify residents in analogous positions to informers. It is not without significance that Ms Dean's affidavit of 4 September 2001 annexed a letter to a resident "whose name has been covered as she does not want to be identified" (para 18). The appellant did not practise the absolute confidence. 72 Given his Honour's acceptance of the first ground for public interest immunity, Cooper AJ's requirement of deletion of the names, addresses and telephone numbers of residents appearing in the documents was too narrow. Provided that there are the more complete deletions accepted by the respondent, the public interest recognised by his Honour and intended to safeguard the residents of the retirement villages, is protected, consistently with affording the respondent an opportunity properly to present its case in the proceedings. The appellant for its part accepted that, if it failed to obtain blanket public interest immunity, it could not have more than those deletions. The result 73 The appeal should be upheld in order to provide for the more complete deletions, but not otherwise. The appellant brought upon itself any need to appeal with respect to s 193(1), and could have had the more complete deletions without the need for an appeal. It should pay the costs of the appeal. 74 I propose the following orders - (1) Appeal allowed in part. (2) Set aside the orders of Cooper AJ so far as his Honour ordered that the access to documents be on the proviso that the names, addresses and telephone numbers of residents appearing in the documents be deleted, and in lieu thereof order that the access to documents be on the proviso that any parts of the documents which identify or tend to identify residents of the respondent's retirement villages be deleted. (3) Appeal otherwise dismissed. (4) Appellant pay the respondent's costs of the appeal. ********** 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.