State of New South Wales v Public Transport Ticketing Corporation (No 3) [2011] NSWCA 200

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Public Transport Ticketing Corporation (No 3) [2011] NSWCA 200 Hearing dates: On the papers Decision date: 22 July 2011 Before: Allsop P at 1 Hodgson JA at 41 Sackville AJA at 42 Decision: Orders: 1. The following documents be disclosed: (a) Paras 4.1, 4.2, 4.3, 4.6 and 4.8 in document D1. (b) Paras 5.1-5.3, together with headings, in Item 5 in documents D2-D4. (c) Paras 3.1-3.7 of Item 3 in documents D5-D6. 2. The Court, through the Registrar of the Court of Appeal, request the Attorney-General to nominate counsel considered appropriate to act as special counsel in the proceedings in order that the issue of public interest immunity be resolved as expeditiously as possible. 3. If the Attorney-General fails to nominate such a counsel or if the State of New South Wales ("State") and the Second and Third Respondents cannot agree on the person so nominated, the appointment will be made, after hearing the parties, by the President of the Court of Appeal. 4. The special counsel receive instructions from the Second and Third Respondents prior to inspecting the confidential documents. Once the confidential material has been provided to and inspected by special counsel, he or she receive no further instructions from the Second or Third Respondents, without the prior agreement of the solicitors for the State. 5. The special counsel not disclose to the Second or Third Respondents or their legal representatives or to any person other than the Court and the State and its legal representatives the contents of the confidential documents. 6. The special counsel make submissions to the Court in respect of the claim for public interest immunity, in accordance with the directions of the Court and in the absence of the Second and Third Respondents or in a manner and form as maintain the confidentiality of the documents. 7. Following the determination of the State's public interest immunity claim, the special counsel take no further part in the proceedings. 8. The fees for the special counsel be paid, in the first instance, by the Second and Third Respondents and such costs be reserved to the bench hearing the public interest immunity claim. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - interlocutory decision - discovery - public interest immunity - whether Court should reconsider decision of application of immunity to category of documents in light of amended pleadings.